State v. Carter , 2021 Ohio 358 ( 2021 )

[Cite as State v. Carter, 2021-Ohio-358.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
TYREE MARQUIS CARTER : Case No. 2020-CA0031
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2019-CR-0379N
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 8, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH C. SNYDER R. JOSHUA BROWN
38 South Park Street 32 Lutz Avenue
Mansfield, OH 44902 Lexington, OH 44904
Richland County, Case No. 2020-CA0031 2
Wise, Earle, J.
{¶ 1} Defendant-appellant Tyree Marquis Carter appeals the February 18, 2020
judgment of conviction and sentence of the Richland County Court of Common Pleas.
Plaintiff-appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} A detailed recitation of the underlying facts is unnecessary for our resolution
of this appeal. The relevant facts are as follow.
{¶ 3} On February 11, 2020, following a jury trial, appellant was found guilty of
the murder of a fellow Mansfield Correctional Institute inmate, Michael Dodgens. Before
trial began, the trial court judge, counsel for appellant, and counsel for the state met in
chambers for a security hearing. Appellant was not present for this meeting. Matters
discussed included the fact that appellant did not appear with civilian clothing ready for
trial, and security measures which would be in place during trial due to the fact that rival
prison gangs were involved in this matter and would be testifying.
{¶ 4} The trial court indicated appellant's prison garb was a plain shirt and pants
and did not bear any lettering or numbering which would indicate appellant was an inmate.
Moreover, the trial court noted all witnesses would be testifying to an incident which took
place in a prison and involved prisoners and prison officials. The trial court therefore did
not find appellant's attire would be in any way prejudicial. Transcript of trial (T.) 1-2.
{¶ 5} The trial court also noted that because witnesses would include members
of rival prison gangs, appellant would be fitted with an ankle bracelet stun device during
trial, but that this device would be covered by his pants. The court further indicated, for
Richland County, Case No. 2020-CA0031 3
the same reasons, appellant's legs would be shackled and extra security would be
present in the court room. T. 2-3.
{¶ 6} Counsel for appellant objected to "* * * my client not being able to wear
regular clothes * * *" and being shackled in any way. T. 5. The trial court clarified it was
not prohibiting appellant from wearing civilian clothing. Rather, the problem was appellant
had not acquired civilian clothing for purposes of trial. The trial court then offered to wait
if counsel wished to go and purchase clothing for appellant. The court noted it had made
efforts itself for alternative arrangements, however, no resources available to the court
had clothing that would fit appellant. The court then indicated it would instruct the jury that
it was not to use the fact that appellant was an inmate against him. T. 6. Trial proceeded
without any further objection from counsel for appellant on these points.
{¶ 7} After being found guilty as charged, the trial court sentenced appellant to a
prison term of 15 years to life to be served consecutively to the term he was already
serving on unrelated charges. Appellant timely filed an appeal and the matter is now
before this court for consideration. He raises one assignment of error:
I
{¶ 8} "APPELLANT WAS DENIED THE RIGHT TO A FAIR TRIAL IN VIOLATION
OF HIS RIGHTS UNDER THE SIXTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AS A RESULT OF THE INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL."
{¶ 9} In his sole assignment of error, appellant argues his counsel rendered
ineffective assistance. We disagree.
Applicable Law
Richland County, Case No. 2020-CA0031 4
{¶ 10} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable
probability" is "probability sufficient to undermine confidence in the outcome." Strickland
at 694, 104 S.Ct. 2052.
{¶ 11} Because there are countless ways to provide effective assistance in any
given case, judicial scrutiny of a lawyer's performance must be highly deferential.
Strickland, 466 U.S. 668 at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. "Decisions on strategy
and trial tactics are granted wide latitude of professional judgment, and it is not the duty
of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v.
Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 18.
Prison Garb
{¶ 12} Appellant first argues his counsel was ineffective for failing to secure civilian
clothing for him to wear at trial. But as discussed in our statement of facts, appellant was
not compelled to wear prison clothing. As further discussed above, appellant's clothing,
although prison-issued, was described on the record as non-descript and did not identify
appellant as a prisoner.
{¶ 13} In Estelle v. Williams, (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126(1976), while the United States Supreme Court stated that a juror's judgment might be
Richland County, Case No. 2020-CA0031 5
affected by a defendant's appearance in prison clothing, it refused to establish a bright-
line rule that a conviction must be overturned when an accused wore jail clothing at trial.
“Instead, the inquiry must focus on whether the accused's appearance before the jury in
jail clothes was compelled.” State v. Dorsey, Cuyahoga No. 72177(Apr. 23, 1998) citing
Estelle, supra. The Estelle court stated:
The reason for this judicial focus upon compulsion is simple;
instances frequently arise where a defendant prefers to stand trial
before his peers in prison garments. The cases show, for example,
that it is not an uncommon defense tactic to produce the defendant
in jail clothes in the hope of eliciting sympathy from the jury. Estelle
supra at 508.
{¶ 14} The record here fails to demonstrate that appellant was compelled to wear
prison clothing. The record does reflect appellant had ample time to obtain civilian
clothing, and in any event, his prison-issued clothing was not identifiable as such.
Additionally, we note appellant was on trial for committing murder while incarcerated at
the Mansfield Correctional Center. The jury was well aware that appellant was an inmate.
Further, witnesses included other inmates and corrections officers. Therefore, even if
counsel could somehow be found to have performed deficiently by failing to secure civilian
clothing for appellant, appellant would still be unable to prove he was prejudiced thereby.
Accordingly, appellant's prison garb argument is overruled.
Security Meeting
Richland County, Case No. 2020-CA0031 6
{¶ 15} Appellant next argues his trial counsel's performance was lacking because
he failed to object when appellant was not present at the security meeting conducted just
before trial.
{¶ 16} In State v. Wallace, Richland App. No.2002CA0072, 2003-Ohio-4119, ¶ 14,
this court set forth the relevant law regarding the presence of a defendant at critical stages
of trial:
"A defendant has a fundamental right to be present at all critical
stages of his criminal trial. State v. Hill, 73 Ohio St.3d 433, 444, 1995-
Ohio-287, 653 N.E.2d 271, citing, Crim.R. 43(A) and Section 10,
Article I, Ohio Constitution. The United States Supreme Court has
stated that an accused is guaranteed the right to be present at all
stages of a criminal proceeding that are critical to its outcome when
his or her absence may frustrate the fairness of the proceedings.
Kentucky v. Stincer (1987), 482 U.S. 730, 745, 107 S.Ct. 2658, 96
L.Ed.2d 631. This right is embodied in Crim.R. 43(A). Criminal Rule
43(A) provides that, 'the defendant shall be present at the
arraignment and every stage of the trial, including the impaneling of
the jury, the return of the verdict, and the imposition of sentence, * *
*.' "
{¶ 17} Appellant does not explain why his presence was required at the in-
chambers conference nor how he suffered prejudice through his absence.
Richland County, Case No. 2020-CA0031 7
Appellant further cites no authority which supports his argument that a security
meeting, which included a discussion of a defendant's clothing is a critical stage of
trial.
{¶ 18} In State v. Frazier 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d
1263 the Supreme Court of Ohio found an in-chambers conference discussing
clothing for the defendant and jury selection was not a critical stage of trial which
would require defendant's presence. Frazier at ¶ 145. Similarly here, we find an in-
chambers discussion regarding appellant's clothing and security measures is not
a critical stage of trial. It had no bearing on the outcome of the trial, nor did it impact
the fairness of the trial. Accordingly, we find counsel for appellant was not
ineffective for failing to object to appellant's absence at the hearing.
Leg Shackles
{¶ 19} Appellant also appears to argue trial counsel was ineffective for
failing to object to the trial court's decision to require leg shackles on appellant
during trial. Brief of Appellant at 13. However, counsel did indeed object. T. 5.
Because appellant makes no argument beyond his allegation that counsel failed
to object, we decline to address the matter further.
Voir Dire, Opening Statement, and Cross Examination
{¶ 20} Appellant next states trial counsel's voir dire examination of potential
jurors was too brief to have been effective, and characterizes counsel's opening
statement as brief and "apathetic." He additionally states counsel failed to
subpoena a witness and characterizes counsel's cross-examination of the state's
witnesses as "paltry."
Richland County, Case No. 2020-CA0031 8
{¶ 21} As pointed out by the state, appellant has made no argument to
support these bald statements, nor has he supported his allegations with
references to the record or citations to authority to support a finding of ineffective
assistance of counsel. App.R. 16(A)(7) requires an appellant to include in his brief
"* * * [a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies”. We may not create an argument for appellant as to why
these stated infractions denied him ineffective assistance of counsel. See Cardone
v. Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998 WL 224934, (May 6,
1998) (“If an argument exists that can support this assignment of error, it is not this
[C]ourt's duty to root it out”).
{¶ 22} Accordingly, we overrule appellant's arguments as to voir dire,
opening statement and failure to subpoena a witness.
Richland County, Case No. 2020-CA0031 9
{¶ 23} Appellant's sole assignment of error is overruled, and the judgment
of the Richland County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Baldwin, J. concur.
EEW/rw