State v. Graham , 2023 Ohio 1453 ( 2023 )

[Cite as State v. Graham, 2023-Ohio-1453.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ISRAEL GRAHAM,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0060
Application to Reopen
BEFORE:
Carol Ann Robb, David A. D’Apolito, Mark A. Hanni, Judges.
JUDGMENT:
Denied.
Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and
Israel J. Graham, pro se, Mansfield Correctional Institute, P.O. Box 788, Mansfield,
Ohio 44901, Defendant-Appellant.
Dated: April 27, 2023
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PER CURIAM.
{¶1} Defendant-Appellant Israel Graham seeks to reopen his appeal to raise
additional assignments of error. For the following reasons, the application to reopen is
denied.
{¶2} A jury in the Mahoning County Common Pleas Court found Appellant guilty
of aggravated robbery, three counts of kidnapping, and safecracking. The judge found
him guilty of having a weapon while under disability. On appeal, Appellant was provided
new counsel who filed a brief setting forth five assignments of error (some containing
multiple issues). We sustained the first assignment of error, reversing and remanding the
conviction for having a weapon while under disability due to the issue counsel raised with
the insufficient jury waiver. We affirmed Appellant’s other convictions after overruling
arguments on accomplice instruction, sufficiency of the evidence, weight of the evidence,
effectiveness of trial counsel, and merger before sentencing. State v. Graham, 7th Dist.
Mahoning No. 21 MA 0060, 2022-Ohio-4752.
{¶3} On March 22, 2023, Appellant filed a timely application to reopen the
appeal. A criminal defendant may apply for reopening of his direct appeal based on a
claim of ineffective assistance of appellate counsel by raising an assignment of error or
an argument in support of an assignment of error that because of appellate counsel's
deficient representation was not previously considered on the merits (or was considered
on an incomplete record). App.R. 26(B)(1),(2)(c). Pursuant to the rule, in order to warrant
reopening for further briefing, the application must demonstrate a “genuine issue as to
whether the applicant was deprived of the effective assistance of counsel on appeal.”
App.R. 26(B)(5). If a genuine issue on ineffectiveness is established so that further
briefing is ordered, then the appellant must fully prove the ineffectiveness of appellate
counsel by demonstrating deficient performance and prejudice. App.R. 26(B)(7)-(9).
{¶4} The traditional two-pronged test of deficiency and prejudice also provides
the underlying framework for assessing whether Appellant raised a genuine issue as to
the ineffectiveness of appellate counsel under App.R. 26(B)(5). State v. Tenace, 109
Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, applying Strickland v. Washington,
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466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Adams, 146 Ohio
St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 2. This test is specified in the rule’s
requirement that the application for reopening be accompanied by a sworn statement
explaining how the appellate attorney’s representation “was deficient with respect to the
assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and
the manner in which the deficiency prejudicially affected the outcome of the appeal * * *.”
App.R. 26(B)(2)(d).
{¶5} In general, deficient performance is characterized by counsel’s
representation falling below an objective standard of reasonableness. Strickland, 466
U.S. at 688. In assessing a cited deficiency, reviewing courts are to heavily defer to
counsel's judgments and strongly presume the contested conduct was in the wide range
of reasonable representation. Tenace, 109 Ohio St.3d 451 at ¶ 7. Courts refrain from
second-guessing the strategic decisions of counsel. State v. Carter, 72 Ohio St.3d 545,
558, 651 N.E.2d 965 (1995). In reviewing for ineffective assistance of counsel, prejudice
refers to the determination of whether there exists a reasonable probability the result of
the proceedings would have been different in the absence of the cited deficiency. Tenace,
109 Ohio St.3d 451 at ¶ 5. A reasonable probability is more than “some conceivable
effect on the outcome of the proceeding.” Strickland, 466 U.S. at 69. See also Carter,
72 Ohio St.3d at 558 (prejudice exists if the court finds the results unreliable or the
proceedings fundamentally unfair).
{¶6} More specifically on the first stage in App.R. 26(B), for the applicant “to
justify reopening his appeal” for further briefing, it has been said he must meet “the burden
of establishing there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of
ineffective assistance of counsel on appeal.” Tenace, 109 Ohio St.3d 451 at ¶ 6, quoting
State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). See also State v. Were,
120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 11. In considering this test,
“appellate counsel need not raise every possible issue in order to render constitutionally
effective assistance.” Tenace, 109 Ohio St.3d 451 at ¶ 7, citing Jones v. Barnes, 463 U.S.
745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) and State v. Sanders, 94 Ohio St.3d
150, 151-152, 761 N.E.2d 18 (2002).
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{¶7} “An error-free, perfect trial does not exist, and is not guaranteed by the
Constitution.” State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-1283, ¶
35, citing State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). “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, to avoid diluting the force of stronger arguments.” Jones, 463 U.S. at
751-752. Accordingly, constitutionally effective appellate counsel need not raise every
non-frivolous argument the client wishes to present. Id. at 751. Making selections on the
choice of appellate arguments is a strategical decision properly employed to avoid diluting
the strength of stronger arguments. Id. at 752.
{¶8} Appellant alleges appellate counsel was ineffective for failing to set forth
two additional assignments of error. His first proposed assignment of error, which
presents two issues, provides:
“APPELLANT WAS DENIED A FAIR TRIAL WHEN DETECTIVE BLOOMER AND
PROSECUTOR IMPROPERLY VOUCHED FOR THE ALLEGED ACCOMPLICE
CREDIBILITY AND BOLSTERED THEIR TESTIMONY IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 1, 10, AND 16 OF THE OHIO CONSTITUTION.”
{¶9} A witness, who was an employee of the restaurant Appellant robbed,
testified to her phone communications with Appellant before and after the robbery wherein
Appellant disclosed his intent, offered payment for her silence, and asked for the address
of another employee who was speaking to police. A detective explained that he
subpoenaed the phone records for the phone number Appellant provided to police as his
personal number. From this, he received phone logs confirming Appellant communicated
with the employee. (Tr. 271). A phone with the same phone number was recovered on
Appellant during his arrest. After the detective obtained a search warrant for this phone,
a task force technician used the Cellebrite program to extract the content of text
messages and print them in a report. (Tr. 272-274). There was no objection made during
this portion of the detective’s testimony.
{¶10} On cross-examination, defense counsel inquired about notes written by the
detective and other officers, asked why the subpoena did not obtain the content of text
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messages, confirmed that the detective had the content of all texts in the Cellebrite report
he read, and emphasized the detective did not testify about the contents of the text
messages. (Tr. 282-283). Defense counsel then questioned the detective on topics
related to the credibility of the identification and the weight of the testimony of Appellant’s
former girlfriend.
{¶11} On redirect examination, the prosecutor asked the detective if the content
of the text messages he reviewed in the report confirmed what the employee described
from the stand about their communications on: her getting paid; where the other
employee lived; the money would be put in her mailbox; and it would occur on a Sunday.
(Tr. 289-290). The only objection occurred on the fifth content-confirmation question,
where the prosecutor asked if the content confirmed he was referring to a robbery. The
prosecutor then asked if “the content of the message confirmed what the witness was
saying?” Without objection, the detective answered in the affirmative. (Tr. 290).
{¶12} Under his first proposed assignment of error, Appellant sets forth two
arguments. First, he argues the detective’s testimony on redirect improperly vouched for
the witness’ credibility. Citing State v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220,
1240 (1989) (“it is the fact finder, not the so-called expert or lay witnesses, who bears the
burden of assessing the credibility and veracity of witnesses”). In his objected-to answer,
the detective did not provide an opinion on the veracity of the employee. The objected-
to answer and his other now-contested answers were in response to questions about
whether certain texts he read were consistent with the testimony he heard from the
witness as she testified on the stand. These were factual questions and answers, not
opinions on witness credibility. We also point out the information was elicited on redirect
examination after defense counsel opened various doors regarding the texts. It is also
noted the law cited by Appellant does not proscribe testimony which is additional support
for the truth of the facts presented in a witness’ testimony or which helps in evaluating the
veracity of a witness. See State v. Stowers, 81 Ohio St.3d 260, 263, 690 N.E.2d 881(1998).
{¶13} Next, Appellant claims the alleged bolstering error was compounded in the
rebuttal portion of closing arguments where the prosecutor noted the employee received
texts and phone calls, recited other evidence, and then said: “We’ve got a phone, We’ve
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got texts. We’ve got phone calls * * *.” (Tr. 323-324). Citing State v. Keene, 81 Ohio
St.3d 646, 666, 693 N.E.2d 246 (1998) (finding the prosecutor’s description of a witness
as “one of the best witnesses any of us has seen in quite awhile” was not improper
vouching for credibility). However, this did not constitute improper vouching as it did not
place the prosecutor’s personal credibility in issue or refer to facts outside of the testimony
presented at trial. See Keene, 81 Ohio St.3d at 666 (finding the prosecutor is permitted
to factually say a witness’ testimony was supported by evidence which bolstered their
credibility issue and finding the issue waived for lack of objection during closing).
{¶14} As the state notes, the use of the word “we” was referring to the jury and
others listening to the evidence presented at trial (rather than behind the scenes actors).
The evidence presented at trial and referred to in the contested portion of the prosecutor’s
rebuttal involved the employee testifying about communications she received from
Appellant. The detective’s direct examination confirmed (without objection) the existence
of communications between the employee and the phone number Appellant claimed as
his own and disclosed a matching phone was recovered from Appellant at his arrest. In
the contested portion of closing argument, the prosecutor merely generally, briefly, and
vaguely made reference to this testimony with no veracity vouching. See State v. Myers,
154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 147 (the prosecutor does not
give a personal opinion of credibility by pointing to the strength of a witness’s testimony
while referencing demeanor, opportunity to observe, consistency, and corroborating
testimony). We additionally point out the contested statement was not made until the
rebuttal portion of closing argument in response to the closing argument presented by
defense counsel, and no objection was made to this rebuttal argument.
{¶15} As to the first proposed assignment of error, Appellant has not raised a
genuine issue as to whether he has a colorable claim of ineffective assistance of appellate
counsel on the topic of counsel’s refusal to brief an argument claiming the aforecited
instances were examples of improper vouching for the credibility of a witness. Contrary
to Appellant’s argument, these are not arguable examples of improper vouching for the
credibility of a witness.
{¶16} Appellant’s second proposed assignment of error is also based on the
phone communications, claiming:
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“APPELLANT WAS DENIED HIS SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, CONFRONTATION CLAUSE, WHEN TRIAL COURT
ERRED IN ADMITTING HEARSAY TESTIMONY OF TYRICA STEPHENS AND
DETECTIVE RYAN BLOOMER, OVER OBJECTION, REGARDING PHONE RECORDS
WHICH WERE NEVER AUTHENTICATED.”
{¶17} First, Appellant alleges the employee of the store he robbed should not have
been permitted to testify as to the calls and texts she received from Appellant. He says
trial counsel objected to her testimony. However, the objection specified the grounds of
leading or asked and answered, not the grounds now raised. (Tr. 215). In any event, the
employee testified to communications Appellant made to her, which constituted non-
hearsay under the “Admission by Party-Opponent” rule. Evid. R. 801(D)(2). Even if a
statement fits the standard definition of hearsay, the same rule specifically defines non-
hearsay as including a statement offered against a party which is the party’s own
statement or which is a statement of which the party has manifested an adoption or belief
in its truth. Evid. R. 801(D)(2)(a)-(b). There is no confrontation clause argument to be
made as the person who heard Appellant’s statements and adoptions testified to them at
trial. Contrary to Appellant’s suggestion, her testimony on what Appellant said to her
need not be authenticated. (And, as the state points out, the threshold for authentication
is low, and a recipient can authenticate texts they received.)
{¶18} Next, Appellant says appellate counsel should have raised hearsay and
confrontation clause violations regarding the prosecutor asking the detective whether he
reviewed the content of text messages and whether they were consistent with the
employee’s testimony. As recited when discussing the first proposed assignment of error,
there were no objections to the first four brief questions on whether the texts confirmed
certain parts of the employee’s testimony. (Tr. 289-290). The only objection occurred on
the fifth content-confirmation question, where the prosecutor asked the detective if the
content of the texts he reviewed confirmed the employee’s testimony that Appellant was
referring to a robbery. The prosecutor then generally asked if “the content of the message
confirmed what the witness was saying?” Without objection, the detective answered in
the affirmative. (Tr. 290). With this record, appellate counsel could not have simply
presented the argument in Appellant’s proposed assignment but would have been
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required to raise plain error or ineffective assistance of trial counsel as to the unobjected-
to questions. See, e.g., Evid.R. 103(A)(1) (to raise error on appeal an objection to the
admission of evidence must be made which states “the specific ground of objection” if
apparent from the context and a substantial right must be affected).
{¶19} Notably, the prosecutor did not ask the detective about the content of the
messages on direct examination. It was defense counsel who elicited that the detective
reviewed the content of the text messages (not the prosecutor, as alleged in Appellant’s
reopening application). (Tr. 283). The detective’s contested testimony was only
presented on redirect examination, after defense counsel suggested the detective was
suppressing or avoiding the content of the texts, opening the door to the issue.
Additionally, the employee had already testified, presented her claims as to the non-
hearsay communications she received from Appellant, and was subjected to cross-
examination by Appellant. See State v. Rose, 7th Dist. Jefferson No. 21 JE 0014, 2022-
Ohio-3529, 202 N.E.3d 1, ¶ 43 (pointing out the witness already testified on the subject
of her communication with the informant and the evidence was only introduced on redirect
examination of a detective after the state considered the door opened to introduce the
messages).
{¶20} Hence, the case at bar is distinguishable from cases cited by Appellant
where the text recipient did not testify (and from cases where the content of texts are
recited or presented as evidence by a detective in direct examination). See State v.
Shaw, 2013-Ohio-5292, 4 N.E.3d 406 (7th Dist.), citing State v. Hood, 135 Ohio St.3d
137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 40-42 (detective was not custodian of phone
records; court could not ensure statements were non-testimonial as records were not
authenticated as business records, where no recipient testified), citing Evid.R. 803(6)
(business records hearsay exception). In Shaw, we found a detective’s testimony reciting
the content of texts he viewed was improper where the texts were not authenticated (such
as by introducing a photograph of the texts with testimony as to how they were obtained
or testimony by the text recipient); however, we found any error harmless. Id. at ¶ 35-43.
Here, the state did not utilize a business record path to admit communications under a
hearsay exception (and the content of the texts was not obtained from the phone company
but from an investigative extraction from the phone confiscated from Appellant). Rather,
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the recipient of the calls and texts testified to her recollection of the communications from
the party opponent.
{¶21} In summary, the proposed assignments of error do not raise a “genuine
issue as to whether the applicant was deprived of the effective assistance of counsel on
appeal” as required by App.R. 26(B)(5). A colorable claim is not apparent as to whether
counsel reasonably selected the arguments to brief on appeal. (Counsel set forth a
rational selection of arguments and was successful in overturning one of the convictions).
It was a valid appellate strategy to limit the amount of arguments in order to avoid diluting
the strength of the favored arguments presumably chosen after review, research, and the
weighing of the existence or specifics of objections made below. See generally Tenace,
109 Ohio St.3d 451 at ¶ 7, citing Jones, 463 U.S. at 751 (appellate counsel does not
render ineffective assistance by “focusing on one central issue if possible, or at most on
a few key issues, to avoid diluting the force of stronger arguments.”). For the foregoing
reasons, the application for reopening is denied.
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 MA 0060