State v. Oteng , 2020 Ohio 6939 ( 2020 )

[Cite as State v. Oteng, 2020-Ohio-6939.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-763
v. : (C.P.C. No. 13CR-224)
Dennis Oteng, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 29, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Dennis Oteng, pro se.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Dennis Oteng, is presently serving a sentence of 18
years to life for the shooting death of Kingsley Owusu. Oteng appeals an October 8, 2019
order of the Franklin County Court of Common Pleas denying his postconviction petition
following a hearing. We affirm on the merits, finding that, in the absence of testimony by
a key witness to resolve significant disparities between that witness' recorded statement
taken soon after the shooting and his later affidavit, the trial court did not abuse its
discretion in finding that Oteng had failed to establish in the postconviction hearing that
his counsel's performance was ineffective and therefore unconstitutionally deficient. We
also find that the trial court did not abuse its discretion in allowing an assistant prosecutor
to testify at the hearing or in holding the hearing in the absence of the key witness where
the witness was apparently deliberately absent, where the hearing had already been
No. 19AP-763 2
continued once due to the witness' absence, and where Oteng took no steps to subpoena or
otherwise compel the witness' presence. We overrule all of Oteng's assignments of error.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 15, 2013, a Franklin County Grand Jury indicted Oteng for the
murder of Kingsley Owusu. (Jan. 15, 2013 Indictment.) The Grand Jury found probable
cause to indict on two alternative charges, murder and felony murder, each with a firearm
specification. Id. Oteng pled not guilty on January 18, 2013. (Jan. 18, 2013 Plea Form.)
{¶ 3} During the month of April 2014, the trial court held a jury trial on the case.
He was found guilty on all counts, and after merging the felony counts, the trial court
sentenced Oteng to 15 years to life consecutively with a 3-year gun specification, for a total
of 18 years to life.
{¶ 4} Oteng appealed. (June 11, 2014 Notice of Appeal.) On direct appeal, we
affirmed Oteng's conviction and stated the following to be the facts of the case, based on
the trial court record:
In the early morning hours of January 5, 2013, Kingsley Owusu
was shot and killed in the parking lot of the Filipino Center on
Westerville Road in Columbus, Ohio. The victim's best friend,
Benjamin Appiah, described the events that lead to Owusu's
death as follows. In the late evening of January 4, 2013, Owusu
and his friend Gab[riel Basoah], also known as G-money,
picked him up at home and traveled to Lounge 62 in
Westerville. When they arrived at Lounge 62, they ran into a
friend by the name of David Aseidu who was at the lounge with
his friend Andrea d'Almeida. Appiah testified that he and all
these other individuals hale from the West African nation of
Ghana. He described the Ghanaian community in Columbus
as a fairly tight knit group, and he stated that most members of
the community know each other.
At Aseidu's suggestion, the group of five left Lounge 62 and
headed to the Filipino Center to attend a New Year's party co-
hosted by Appiah's former girlfriend, Alexis Wellington, and
her best friend, Helen Mamo. According to Appiah, he and
Wellington had dated "on and off" for approximately one and
one-half years prior to that time. (Tr. 335.) Appiah was also
aware that appellant was the father of Wellington's six[-]year[-
]old daughter, Michelle.
When they arrived at the party, [Basoah] parked his vehicle at
the back of the parking lot. Aseidu, who was traveling with
No. 19AP-763 3
d'Almeida, parked their vehicle closer to the main entrance of
the Filipino Center. Appiah testified that he exited the vehicle
and began walking toward the main entrance, just behind
Owusu and [Basoah]. As [Basoah] and Owusu crossed the
parking lot, a man by the name of Yaw Boayke confronted
Owusu and began yelling at him in an "angry tone." (Tr. 353.)
[Basoah] stepped between the two and then struck Boayke in
the face with his forehead. The two men fell to the ground
wrestling before Appiah was able to pull [Basoah] off of Boayke.
When Boayke returned to the Filipino Center, he was bleeding
from the mouth, and he told Mamo that [Basoah] had head-
butted him. By this time, Appiah had entered the Filipino
Center to check out the party, while [Basoah] and Owusu
waited outside. Appiah then saw appellant and "his crew" of
four or five men rush past him toward the parking lot. (Tr. 371.)
Appiah recognized a man he knew as Daniel, also known as
D.J., and another man he knew as Stevenson following
appellant out the main entrance.
At that point, Appiah went out to the parking lot where he saw
appellant approaching Owusu with a handgun raised and
pointed at him. Appiah got between Owusu and appellant in
an effort to diffuse the situation. When he turned away from
appellant to face Owusu, he saw that Owusu was holding a
small handgun. Appiah pleaded with his friend to give him the
gun. He told Owusu "[l]et's just leave the scene." (Tr. 370.)
According to Appiah, Owusu handed him the gun.
At that moment, Appiah heard a [gunshot] ring out behind
him, and he began running toward the main entrance of the
Filipino Center to get away. When he reached the entrance, he
realized Owusu was not with him. Concerned for his friend,
Appiah turned to head back outside, but he was momentarily
delayed by a security guard. When Appiah made it outside, he
saw appellant and Owusu facing one another about arms[']
length[] apart with appellant pointing a handgun at Owusu.
Appiah testified that he was standing about ten feet away from
the two men with a clear view when he saw appellant fire a shot
at Owusu.
According to Appiah, the shot struck [Owusu] in the upper
body, and he immediately fell to the ground. Appellant then
rushed over to Owusu and began kicking him in the head.
When appellant broke off his assault and ran, Appiah tried to
fire a shot from Owusu's gun, but it jammed. Appiah ejected
two live shells from the gun and then began running after
No. 19AP-763 4
appellant, shooting the gun in the air as appellant fled the
parking lot in his black BMW.
Owusu died as a result of a single gunshot wound to the chest.
Columbus Police arrested appellant on January 6, 2013, at the
home of his friend Kwame Kusi.
State v. Oteng, 10th Dist. No. 14AP-466, 2015-Ohio-1231, ¶ 2-9 ("Oteng I").
{¶ 5} Subsequently, on Oteng's appeal of the trial court's denial of postconviction
relief, we again reviewed the entire record and also stated:
The police recovered a single .380 handgun, two live .380
rounds, six spent 9 mm shell casings, and two spent .380
casings at the scene. (State's Ex. A; State's Ex. A-1.) Ballistics
analysis revealed that two 9 mm casings were ejected by one
firearm, four 9 mm casings were ejected from another, and the
two .380 casings were spent by a third weapon. (Tr. at 318;
State's Ex. S-2.) The .380 casings could neither be excluded nor
identified as having been fired in the gun recovered at the scene
(which Appiah testified was the one he used). (Tr. at 317, 320,
395; State's Ex. S-2; State's Ex. A-1.) That gun also did not fire
the fatal bullet recovered from Owusu's body. (Tr. at 317, 320;
State's Ex. S-1.)
Appiah was the only witness (out of 19 State's witnesses) who
testified that he saw Oteng shoot Owusu. (Tr. at 375-76.)
Appiah admitted that he initially lied to the police about
whether he possessed and fired a gun on the night of the
shooting. (Tr. at 394-97.) He explained that he lied because he
was on probation. (Tr. at 396-97.) Although Appiah testified
that Oteng was standing squarely in front of Owusu when
Oteng fired, the coroner testified that Owusu was shot in the
shoulder from the right side at a slightly downward angle. (Tr.
at 416-20, 469-70.) The coroner explained that the bullet
passed through the right shoulder at a downward angle into the
right pleural cavity, passed right to left through the fifth
thoracic vertebra inflicting a crush injury to the spinal cord,
then punctured the left lung, and came to rest in the left pleural
space. (Tr. at 449-50, Autopsy Report at 2, introduced as part
of State's Ex. P.)
Basoah, Boayke, and Appiah were all tested for gunshot residue
("GSR") the evening of the shooting and all three tested
positive. (Tr. at 76-77, 104-05, 745-47; State's Ex. R-1.)
Testimony established that Oteng fled immediately in his BMW
and the BMW was recovered the next day. (Tr. at 151, 160-63,
389.) But even though testimony also established that GSR
No. 19AP-763 5
could have been transferred to the car by Oteng's touch and
even though testimony of an expert suggested that it would
have lingered within the car until the car was cleaned or driven
with the windows down, the BMW was not tested for GSR. (Tr.
at 151, 160-63, 752-55, 788.) Oteng's clothing was tested and
tested negative for GSR. (Tr. at 762; State's Ex. R-2.)
Other than Appiah, five lay witnesses testified about the events
on the evening Owusu was shot. One witness testified that he
heard the shooting but did not see it. (Tr. at 192-93.) He said
that he put on his glasses and looked out of his van after he
heard the shots. Id. He saw a man with a gun kicking someone
lying on the ground but explained that he could not identify
anyone because it was too dark. Id. Another witness, who saw
the confrontation from about 12 feet away, testified that Oteng
was the one kicking Owusu in the head as Owusu lay prostrate.
(Tr. at 255-56, 274.) But that same witness testified that she
saw both of Oteng's hands during and after the kicking and he
was not holding a gun. (Tr. at 276-78, 280-82.) Another
witness testified that both Oteng and Appiah shot their guns
before Owusu was shot and that she did not know who shot
Owusu. (Tr. at 553, 570.) A final witness indicated she was
inside when the shooting happened and did not see any shots
fired. (Tr. at 638-39.) She indicated that someone she knew as
"Daniel" or "DJ" screamed to Oteng, "you shot him, get in the
car." (Tr. at 644, 647-48.) However, she admitted when she was
initially interviewed by the police in the aftermath of the
shooting, she told the police at least four times that Basoah was
the only one who had been shooting a gun and she did not
mention DJ's alleged exclamation. (Tr. at 697-98, 724-29.) A
final witness testified that he had warned Oteng not to go to the
party because he knew Oteng and Owusu were not on good
terms. (Tr. at 813-14.) He said Oteng telephoned him at 2 a.m.
on the night of the shooting and said that he had "shot him,"
which the witness assumed meant that Oteng was confessing to
having shot Owusu. (Tr. at 816-18.) The witness went on to
testify, however, that when he saw Oteng in person the next
evening, Oteng asserted that a lot of people had been shooting
at the party and that he did not shoot Owusu. (Tr. at 821-23,
833.)
On April 24, 2014, a jury found Oteng guilty of all counts.
(Apr. 24, 2014 Verdict Forms.) During a May sentencing
hearing, the trial court merged the two murder and felony
murder counts and sentenced Oteng to serve 15 years to life for
murder plus 3 consecutive years for the firearm specification,
No. 19AP-763 6
for a total sentence of 18 years to life in prison. (Tr. at 988, 990;
May 14, 2014 Jgmt. Entry at 2.)
State v. Oteng, 10th Dist. No. 18AP-58, 2018-Ohio-3138, ¶ 4-8 ("Oteng II").
{¶ 6} In his direct appeal, Oteng raised ten assignments of error. Oteng I at ¶ 12.
Among other arguments, Oteng maintained that his trial counsel had performed
ineffectively due to a failure to review certain jail calls, failure to insist on the employment
of an interpreter to translate jail calls for the jury, failure to object to hearsay testimony,
and failure to object to improper comments and questions by the prosecutor. Id. at ¶ 86-
92. On March 31, 2015, a panel of this Court overruled all his assignments of error,
including the ineffective assistance of counsel arguments, and affirmed the conviction. Id.in passim.
{¶ 7} After litigation of a motion for a new trial and an attempted appeal to the
Supreme Court of Ohio, Oteng filed a postconviction petition and amended postconviction
petition (together with a motion for leave to amend) seeking to vacate or set aside the
conviction. (Aug. 17, 2017 Postconviction Petition; Jan. 3, 2018 Am. Petition, attached to
Jan. 3, 2018 Mot. for Leave.) In these documents, Oteng asserted a single claim, that he
was deprived of his right to conflict-free counsel when his trial counsel, Javier Armengau,
represented him despite an undisclosed conflict of interest and when Armengau failed to
call witnesses necessary to his defense. Specifically, Oteng argued that because Armengau
had been indicted for several serious offenses,1 Armengau would not have wished to defend
Oteng vigorously due to a desire to curry favor with the State. (Aug. 17, 2017 Postconviction
Petition.) Oteng also argued that Armengau failed to call an exonerating witness and
attached the affidavit of Seth Mensah in which Mensah swore that he personally witnessed
the shooting. (Mensah Aff., Ex. D., attached to Jan. 3, 2018 Am. Petition.) Mensah averred
that "[t]he person who shot Mr. Owusu was not Dennis Oteng. I did not even see Mr. Oteng
with a firearm." Id. Mensah stated that the shootout was between "G-Money [Basoah] and
Ben Appiah" and that Oteng was inside the Filipino Center when the shooting occurred. Id.Mensah further averred that he told the police this information and that he had attempted
to contact Armengau but his contact attempts had gone unanswered. Id.1 Armengau was indicted in Franklin County in May 2013 for three counts of kidnapping, one count of public
indecency, three counts of gross sexual imposition, six counts of rape with specifications, and five counts of
sexual battery. (Ex. A, attached to Aug. 17, 2017 Postconviction Petition.)
No. 19AP-763 7
{¶ 8} The trial court denied Oteng's initial petition without a hearing and did not
mention or explicitly rule on his motion to amend his petition or the amended petition,
itself. (Jan. 3, 2018 Decision & Entry.) On an appeal from that decision, we reversed,
modified the trial court's decision to grant leave to amend, and remanded so that the trial
court could reconsider the matter in light of the amended petition and Mensah's affidavit.
Oteng II at ¶ 28.
{¶ 9} On remand, the trial court issued a briefing schedule on the amended petition
and the parties briefed the matter. (Sept. 5, 2018 Briefing Schedule; Sept. 10, 2018 State's
Memo. Contra; Oct. 3, 2018 Oteng's Reply.) Based on the briefing, the trial court scheduled
a hearing. (Feb. 5, 2019 Hearing Scheduled.) The trial court continued the hearing once
on its own motion and once more when Mensah failed to appear to testify. (Mar. 7, 2019
Continuance; May 22, 2019 Continuance; June 14, 2019 Hearing Tr. at 5, filed Jan. 13,
2020.) On the third scheduled date, June 14, 2019, the trial court held an evidentiary
hearing on the petition and amended petition for postconviction relief. (June 14, 2019
Hearing Tr.)
{¶ 10} At the outset of the hearing, Oteng's counsel noted that Mensah had, once
again, failed to appear for the hearing. Id. at 4. Counsel explained that Mensah's absence
was apparently a deliberate choice by Mensah and that Mensah indicated he had received
threats from the police. Id. Oteng's attorney did not request a further continuance of the
hearing on the record or a warrant to secure Mensah's presence, but did request that the
proceeding "be left open" so that Mensah could provide testimony whenever he might be
located. Id. The State denied knowledge of any police threats, indicated that the police
were not looking for Mensah and likely were not even aware of the hearing. Id. at 5. Neither
the State nor the court expressly addressed on the record Oteng's request that the hearing
be "left open."
{¶ 11} Two witnesses ultimately testified in the hearing. The first to testify was
Oteng. Oteng testified that he hired his trial counsel, Javier Armengau, in 2013 and that
Armengau did not disclose that he was under indictment. (June 14, 2019 Hearing Tr. at 9.)
Oteng said that, had he been aware of Armengau's legal situation, he would not have hired
him. Id. at 9-10. He explained that not until after the trial was concluded, did he become
aware of Armengau's personal legal troubles and begin to understand, in hindsight, that he
No. 19AP-763 8
had not been represented properly. Id. at 13-14. Specifically, he testified that Armengau
was ineffective in failing to follow up on Mensah's attempts to contact counsel and in failing
to call Mensah as a witness at trial. Id. at 19-21. He also added that Armengau made the
incorrect decision during trial to refrain from calling Oteng's girlfriend as a witness and
that, had she been called, she would have testified that Oteng had not possessed a gun. Id.
at 21-23. However, Oteng also admitted that Armengau cross-examined the State's
witnesses against him and successfully proved that the witnesses had changed their stories
about what happened. Id. at 16-17. Oteng also admitted he was unaware that Armengau
had been prosecuted by the Ohio Attorney General's Office rather than the Franklin County
Prosecutor's Office. Id. at 12.
{¶ 12} The second and final witness to testify was the lead prosecutor in Oteng's
trial. Id. at 24-25. The prosecutor testified that he provided both an audio recording of a
statement given by Mensah and an informational summary prepared by the interviewing
officer to Oteng's counsel in discovery. Id. at 25-26. Both recording and summary were
introduced as exhibits at the hearing. (State's Exs. A-A1.) In the recorded statement,
Mensah explained that he was at the party for 40 minutes before it was shut down (due to
the shooting). (State's Ex. A1 at 5:10-5:15, 6:45-6:59.) Mensah said he was inside the party
and heard the shots but did not know who fired shots. Id. at 5:05-5:42. He stated that he
saw Oteng at the party, but that they were in different places and he and Oteng did not
interact that evening. Id. at 7:00-7:22. At some point, Oteng left and Mensah did not see
him after that point. Id. at 7:00-7:12. The prosecutor admitted that he did not know if
Mensah and Armengau had communicated. (June 14, 2019 Hearing Tr. at 31-32.)
However, the prosecutor stated that it was his observation that Armengau seemed to have
been "on his game" during the trial and did a good job. Id. at 29-30.
{¶ 13} On October 8, 2019, the trial court issued a decision denying the petition and
amended petition for postconviction relief on the merits. (Oct. 8, 2019 Entry.) In its
decision, the trial court noted that the hearing had been continued once due to Mensah's
failure to appear and that Oteng's counsel had requested a continuance of the June 14, 2019
hearing when Mensah again failed to appear. Id. at 2. The trial court noted the lack of
indication that Mensah had been subpoenaed in denying the continuance and proceeding
in Mensah's absence. Id. The trial court in its decision recounted the evidence presented
No. 19AP-763 9
in the hearing and concluded that the evidence did not show that Armengau provided
ineffective assistance to Oteng such that his Sixth Amendment right to counsel would have
been violated. Id. at 2-7. It therefore denied the petition (and the amended petition) on
their merits. Id. at 7.
{¶ 14} Oteng now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 15} Oteng alleges three assignments of error for review:
[1.] The trial court abused its discretion when it denied
Petitioner-Appellant Dennis Oteng's post-conviction petition
on insufficient findings on ineffective assistance of counsel and
a conflict of interest against Attorney Javier Armengau in
violation of the Fifth, Sixth, and Fourteenth Amendment to the
U.S. Constitution and Art. 1 Sec. 10 of the Ohio Constitution.
[2.] The trial court abused its discretion when it denied
Petitioner-Appellant Dennis Oteng's post-conviction petition
after sufficient evidence was submitted at an evidentiary
hearing of Attorney Javier Armengau infectiveness and a
showing of a conflict of interest which warranted the conviction
to be vacated.
[3.] The trial court abused its discretion when the court over
defense counsel's objection allowed the State prosecutor's
office to call an assistant prosecutor to testify at the evidentiary
hearing in violation of Ohio Prof. Cond. Rule 3.7.
We address the third assignment of error first, resolving the issue of the evidence before
the trial court before reviewing its conclusions on the evidence.
III. DISCUSSION
A. Third Assignment of Error - Whether the Trial Court Abused its
Discretion in Permitting the Lead Prosecutor in the Trial to Testify
{¶ 16} "Generally, '[t]he admission of evidence is within the discretion of the trial
court.' " Shaw v. Underwood, 10th Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25, quoting
Brown v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 36, citing
Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38. Thus, the
decision to admit or exclude evidence is reviewed for abuse of discretion. Underwood at
¶ 25. Yet, "[a]lthough an abuse of discretion is typically defined as an unreasonable,
arbitrary, or unconscionable decision, we note that no court has the authority, within its
discretion, to commit an error of law." (Citations omitted.) State v. Chandler, 10th Dist.
No. 19AP-763 10
No. 13AP-452, 2013-Ohio-4671, ¶ 8; see also JPMorgan Chase Bank, N.A. v. Liggins, 10th
Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18. "We therefore review the decision of the trial
court for abuse of discretion with the understanding that if the trial court erred on a
question of law, even with respect to an evidentiary issue, that such is an abuse of
discretion." Pontius v. Riverside Radiology & Interventional Assocs., 10th Dist. No. 15AP-
906, 2016-Ohio-1515, ¶ 15.
{¶ 17} Oteng argues that the trial court abused its discretion in permitting the lead
prosecutor in his trial to testify during the postconviction hearing on the topic of
Armengau's efficacy. (Oteng's Brief at 19-22.) Specifically, he argues that the trial court
erred in that it permitted the attorney to violate Ohio Rule of Professional Conduct 3.7. Id.{¶ 18} Rule 3.7(c) provides, "[a] government lawyer participating in a case shall not
testify or offer the testimony of another lawyer in the same government agency, except
where division (a) applies or where permitted by law." Division (a) of the rule states:
(a) A lawyer shall not act as an advocate at a trial in which the
lawyer is likely to be a necessary witness unless one or more of
the following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case;
(3) the disqualification of the lawyer would work substantial
hardship on the client.
(Emphasis sic.) Prof.Cond.R. 3.7(a). In this case, a government lawyer (with the Franklin
County Prosecutor's Office) defending the State in Oteng's postconviction hearing offered
the testimony of another government lawyer in the same government agency. Prof.Cond.R.
3.7(c).
{¶ 19} The Rules of Professional Conduct are not rules of evidence and the authority
to govern the bar and adjudicate violations of such rules lies solely with the Supreme Court
of Ohio. State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 2004-Ohio-2590, ¶ 7-8.
Exclusion is sometimes a proper consideration when, for example, issues of privilege or
work product are raised (which can also implicate the rules of conduct). See generally
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-
Ohio-4469. But we have not found any precedent for the proposition that a violation of the
No. 19AP-763 11
rule at issue in this case should result in an order of exclusion on appeal. In fact, out-of-
district precedent is to the opposite effect. See State v. White, 4th Dist. No. 19CA715, 2019-
Ohio-4562, ¶ 32-33.
{¶ 20} This situation implicates a circumstance where an agency (in this case, the
Franklin County Prosecutor's Office) is both an advocate for its position and the substantive
witness in favor of that position. See Prof.Cond.R. 3.7, comments [2]-[5]. However, the
testimony offered here related to the nature of legal services rendered by opposing counsel
in the trial that was at issue in the postconviction hearing. Prof.Cond.R. 3.7(a)(2). The
comments to Rule 3.7 make clear that one of the important considerations underlying the
rule is the avoidance of confusion for the factfinder. Prof.Cond.R. 3.7, comments. The
testimony at issue was offered at a postconviction hearing before the trial court in support
of the professional competence of defense counsel during the underlying trial,
commensurately reducing the significance of this witness’s testimony.
{¶ 21} We note that the same factfinder on postconviction relief, the trial court, also
had the opportunity to observe and evaluate Oteng's counsel's performance during the trial.
For the purpose of avoiding confusion for the factfinder, we find little to no likelihood of
confusion in these circumstances.
{¶ 22} While we do not render a judgment on any alleged violation of Prof.Cond.R.
3.7(a)(2), based on the rule's purpose and the evidence in the record, we find no reversible
error in the trial court's permitting the lead trial counsel for the State at trial to testify at the
hearing on Oteng's motion for postconviction relief about his defense counsel's
performance at trial. Thus, we overrule Oteng's third assignment of error.
B. First and Second Assignment of Error - Whether the Trial Court Erred
in Failing to Find that Armengau was Ineffective Due to a Conflict of
Interest
{¶ 23} The Ohio Revised Code provides:
Any person who has been convicted of a criminal offense * * *
and who claims that there was such a denial or infringement of
the person's rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United
States * * * 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.
No. 19AP-763 12
R.C. 2953.21(A)(1)(a). This postconviction relief process is a collateral civil attack on a
criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). "It is a means to reach
constitutional issues which would otherwise be impossible to reach because the evidence
supporting those issues is not contained" in the trial court record. State v. Murphy, 10th
Dist. No. 00AP-233, 2000 WL 1877526, 2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000);
see also, e.g., State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. "If the court
does not find grounds for granting relief, it shall make and file findings of fact and
conclusions of law and shall enter judgment denying relief on the petition." R.C.
2953.21(H). "If * * * the court finds grounds for relief * * * it shall make and file findings of
fact and conclusions of law and shall enter a judgment that vacates and sets aside the
judgment in question, and, in the case of a petitioner who is a prisoner in custody, shall
discharge or resentence the petitioner or grant a new trial as the court determines
appropriate." Id.{¶ 24} Because the trial court is in the best position to view and weigh testimony,
when we consider a trial court's determinations based on evidence obtained during a
postconviction hearing, we defer to the trial court's findings and apply an abuse of
discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 46-58. Thus,
we should not reverse a discretionary finding following a hearing if it is supported by
competent, credible evidence. Id. at ¶ 58. Yet, as ever, "we note that no court has the
authority, within its discretion, to commit an error of law." (Citations omitted.) Chandler,
2013-Ohio-4671, at ¶ 8; see also Liggins, 2016-Ohio-3528, at ¶ 18.
{¶ 25} In this case, the constitutional right Oteng claims was violated was his right
to counsel under the Sixth Amendment to the U.S. Constitution. (Oteng's Brief at 5-18.)
Specifically, he argues that although he had counsel, his attorney (Armengau) had a conflict
of interest that rendered him ineffective. Id.{¶ 26} In cases involving the representation of multiple defendants, the Supreme
Court has stated, "[w]here there is a right to counsel, the Sixth Amendment to the United
States Constitution also guarantees that representation will be free from conflicts of
interest." State v. Dillon, 74 Ohio St.3d 166, 167 (1995), citing State v. Gillard, 64 Ohio
St.3d 304, 312 (1992). Relying on United States Supreme Court precedent, this Court has
previously held:
No. 19AP-763 13
"* * * Prejudice is presumed when counsel is burdened by an
actual conflict of interest. * * * Given the obligation of counsel
to avoid conflicts of interest and the ability of trial courts to
make early inquiry in certain situations likely to give rise to
conflicts * * * it is reasonable for the criminal justice system to
maintain a fairly rigid rule of presumed prejudice for conflicts
of interest. * * * Prejudice is presumed only if the defendant
demonstrates that counsel 'actively represented conflicting
interests' and that 'an actual conflict of interest adversely
affected his lawyer's performance.' * * *"
State v. Foster, 10th Dist. No. 90AP-05, 1990 WL 174008, 1990 Ohio App. LEXIS 4911, *9-
10 (Nov. 6, 1990), quoting Strickland v. Washington, 466 U.S. 668, 692 (1984). More
recently, the Supreme Court of Ohio has explained, "[i]n order to satisfy a Sixth
Amendment claim of ineffective assistance of counsel," based on a conflict of interest, a
defendant "must demonstrate that an actual conflict of interest adversely affected his
counsel's actual performance." State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488,
¶ 102; see also Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980).
{¶ 27} Though Oteng relies on the principles involved in these cases, his argument
is somewhat different. (Oteng's Brief at 6.) He argues that, although Armengau was not
engaged in representing another defendant whose interests were opposed to Oteng's,
Armengau's own legal difficulties were such that a conflict arose. Id. at 6-13. That is, "Oteng
[has] argued that because Armengau had been indicted for several serious offenses,
Armengau would not have wished to defend Oteng vigorously due to a desire to curry favor
with the State." Oteng II at ¶ 10.
{¶ 28} A pending criminal or ethical case against a defense attorney by the same
prosecutor's office or in the same jurisdiction as the attorney's client's case, under certain
circumstances can create a conflict of interest. See, e.g., State v. Dean, 127 Ohio St.3d 140,
2010-Ohio-5070, ¶ 21-23, 71; United States v. De Falco, 644 F.2d 132, 133-36 (3d Cir.1979).
As the Third Circuit put it in De Falco:
The adversary system of the common law, as distinguished
from the inquisitorial system of the civil law, is regarded in the
Anglo-American tradition as the surest method of arriving at
the truth when facts are disputed, and for discerning the proper
legal precepts to be applied to those facts. These goals are to be
achieved by the healthy and forceful presentation of partisan
viewpoints. Although the ultimate decision is always the
responsibility of the jury and the judge, our system can prosper
No. 19AP-763 14
only when lawyers, as officers of the court, are able to develop
the fullest dimensions of the cause being heard. "[The lawyer's]
principal responsibility is to serve the undivided interests of his
client. Indeed, an indispensable element of the effective
performance of his responsibilities is the ability to act
independently of the government and to oppose it in adversary
litigation." Ferri v. Ackerman, 444 U.S. 193, 204, * * *
(December 4, 1979). If there is any constraint on counsel's
complete and exuberant presentation, our system will fail
because the basic ingredient of the adversary system will be
missing. The essence of the system is that there be professional
antagonists in the legal forum, dynamic disputants prepared to
do combat for the purpose of aiding the court in its quest to do
justice. Therefore, if any circumstance impedes the unqualified
participation by an attorney, the adjudicatory function is
inhibited, ultimately threatening the object of that function,
justice in the cause at hand.
De Falco at 136. The Third Circuit explained why a pending criminal prosecution against
an advocate by his adversary sometimes could disrupt that process:
It is essential that the advocate owe no fealty that conflicts, or
even appears to conflict, with the paramount ethical loyalty he
owes his client. The competent advocate must stand tall * * *
and assert his [or her] client's contentions without fear or favor.
This is not the posture a defendant in a criminal case assumes
as he goes, hat in hand, to negotiate a plea bargain with his
adversary. Nor is it the posture a defendant assumes as he
appears before the trial court following a plea of guilty to beg
the mercy of the court before sentence is pronounced.
Id.{¶ 29} From the record of Oteng's postconviction hearing it is clear that Armengau
was prosecuted by the Ohio Attorney General's Office rather than the Franklin County
Prosecutor. (June 14, 2019 Hearing Tr. at 12.) We note that, regardless of the office or title
of the legal representative, the party pressing prosecution and whose interests were sought
to be vindicated by the prosecution, was the State—the same party that was pursuing the
prosecution of Oteng. State v. Oteng, Franklin C.P. No. 13CR-224; State v. Armengau,
Franklin C.P. No. 13CR-2217. Moreover, the jurisdiction and venue of both prosecutions
(Franklin County Common Pleas Court) was the same. In other words, Armengau was
simultaneously litigating against the State in Franklin County on behalf of Oteng while
being prosecuted by the State in Franklin County for multiple serious felonies. Thus, it
No. 19AP-763 15
could be possible to argue that Armengau could have experienced a divided loyalty between
his duty to vigorously represent his client against the State and his personal wish to avoid
antagonizing either the court (that would conduct his trial and sentence him) or the State
(which sought to convict and imprison him). It is also undisputed, based on the evidence
presented during the hearing, that Oteng was not made aware of the possible conflict until
after the representation was concluded. (June 14, 2019 Hearing Tr. at 9-14.)
{¶ 30} We need not reach that determination, however, because Oteng could not
prevail in his Sixth Amendment argument unless he also established that the actual conflict
"adversely affected his counsel's actual performance." Jackson, 2016-Ohio-5488, at ¶ 102;
see also Cuyler, 446 U.S. at 348-50. Finding no abuse of discretion, we agree with the trial
court's determination that Oteng failed to meet this burden. (Oct. 8, 2019 Entry at 4-7.) In
the course of this appeal and prior appeals in this case, we have conducted a thorough
review of the trial transcript, and we find no testimony or findings of the trial judge that
would show the trial court abused its discretion in finding that Armengau performed
effectively in Oteng's trial. Id.; June 14, 2019 Hearing Tr. at 29-30. Even Oteng admitted
that Armengau cross-examined and managed to prove that each of the State's witnesses
had altered their stories and had essentially lied. (June 14, 2019 Hearing Tr. at 16-17.)
{¶ 31} Notwithstanding the evidence of Armengau's generally good performance at
trial, the facts stated by Mensah in his affidavit if credited could lead to a different
conclusion on Armengau's representation in that Mensah asserts that he was a potentially
exonerating witness whom Armengau ignored. (Mensah Aff., Ex. D., attached to Jan. 3,
2018 Am. Petition.) That is, Mensah in his affidavit asserts that he observed the shooting,
could identify the shooters, could exonerate Oteng, previously related all of this to police,
and attempted to relate it to Oteng's counsel:
On January 5, 2013, I was at the Filipino Center on Westerville
Road in Columbus, Ohio and observed Kingsley Owusu being
shot and killed in the parking lot. The person who shot Mr.
Owusu was not Dennis Oteng. I did not even see Mr. Oteng
with a firearm. The men responsible for shooting Mr. Owusu
were two men I knew as G-Money and Ben Appiah. They both
arrived with Mr. Owusu and had a shootout with other people
at the Filipino Center. Mr. Oteng was inside the Center when
the shooting occurred. * * *
No. 19AP-763 16
After hearing that Mr. Oteng was charged with the crime, I
attempted to contact his attorney, Javier Armengau, and relay
the information I knew about the shooting. However, Mr.
Armengau never returned my messages. I also told police
detectives this information.
(Mensah Aff., Ex. D., attached to Jan. 3, 2018 Am. Petition.) However, Mensah's recorded
statement, obtained near the time of the shooting, contradicts many of his assertions by
affidavit. The recorded statement reveals that Mensah told the police that he was inside the
party and therefore only heard, but did not see, the shooting, and did not know who the
shooter was. (State's Ex. A1 at 5:05-5:42.) The recording also shows that Mensah admitted
that he saw Oteng at the party, but did not interact with him and then saw him leave. Id. at
7:00-7:22. While that recorded statement does not present such facts that would make
Oteng's innocence impossible, it stands in sharp contrast the clearly exonerating assertions
of Mensah's later affidavit.
{¶ 32} Rather than appear and offer evidence at the postconviction hearing to
resolve this conflict and support the claims made in the affidavit, Mensah twice failed to
appear. (June 14, 2019 Hearing Tr. at 4-5.) The trial court also pointed out that, once the
hearing was scheduled, Oteng could have subpoenaed Mensah for the hearing under Civ.R.
45 to require his presence. (Oct. 8, 2019 Entry at 2.) Oteng did not do this. Nor was
evidence beyond an inadmissible statement by counsel offered to show that Mensah had
been intimidated by law enforcement into avoiding the hearing. Id.; June 14, 2019 Hearing
Tr. at 4-5, in passim. Given what was before the trial court: Mensah's conflicting counts of
the events that led to the death of the victim, Kingsley Owusu, and the fact that Mensah did
not appear to testify to resolve the conflict and permit the trial court to judge his credibility,
we do not find an abuse of discretion in the trial court's ruling that Oteng had not proven
Armengau's performance was adversely affected.
{¶ 33} Oteng also appears to argue that the trial court acted improperly in failing to
continue the hearing to allow Mensah the opportunity to appear or to allow the defense the
opportunity to prove that Mensah was being intimidated by the police. (Oteng's Brief at 15-
16.) The hearing had already been continued once for the purpose of permitting Mensah to
appear and the docket does not reflect that any attempt was made to subpoena Mensah for
the second hearing or take other legal steps to ensure his presence. (June 14, 2019 Hearing
No. 19AP-763 17
Tr. at 4-5; Docket in Franklin C.P. No. 13CR-224.) Under the circumstances, the trial court
properly acted within its discretion in proceeding with the hearing.
{¶ 34} We overrule Oteng's second and third assignments of error.
IV. CONCLUSION
{¶ 35} The trial court did not abuse its discretion in allowing an assistant prosecutor
to testify at a hearing on Oteng's postconviction petition or in holding the hearing in the
absence of a key witness where the record shows that witness was deliberately absent,
where the hearing had already been continued once due to this witness' absence, and where
no steps were taken to subpoena or otherwise compel this witness' presence, thus denying
the trial court the opportunity on postconviction review to see and hear the live testimony
of the witness in order to resolve the apparent disparity between his recorded statement
taken soon after the shooting and his later-created affidavit and to judge his credibility. The
trial court did not commit reversible error in finding that Oteng had failed to establish that
his counsel's performance was unconstitutionally deficient. We affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
NELSON, J., concurs.
SADLER, P.J., concurs in judgment only.