State v. Bender-Adams

2025 Ohio 1364

• Court: Ohio Court of Appeals
• Decided: April 16, 2025
• Docket: 113366
• Status: Published

Opinion

[Cite as State v. Bender-Adams, 2025-Ohio-1364.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113366 v. :

SIRTRUCE BENDER-ADAMS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: April 16, 2025

Cuyahoga County Court of Common Pleas Case No. CR-22-673864-B Application for Reopening Motion No. 580109

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Chauncey Keller, Assistant Prosecuting Attorney, for appellee.

Sirtruce Bender-Adams, pro se.

EILEEN A. GALLAGHER, A.J.:

On December 10, 2024, the applicant, Sirtruce Bender-Adams,

pursuant to App.R. 26(B), applied to reopen this court’s judgment in State v.

Bender-Adams, 2024-Ohio-4897 (8th Dist.), in which this court affirmed his convictions for aggravated murder, murder, aggravated burglary, burglary,

felonious assault and having a weapon while under disability. Bender-Adams now

argues that his appellate counsel was ineffective for not raising the following errors

on appeal: “(1) Failure to raise Napue Claim in which prosecutors used false

testimony, (2) Failure to put on the record proof of actual innocence and failure to

investigate evidence and (3) Manifested weight of the evidence.” The State filed its

brief in opposition on January 9, 2025, and Bender-Adams filed a supplemental

motion on February 20, 2025. For the following reasons, this court denies the

application to reopen.

Facts and Procedural Background

James Randalf encountered the defendant, Sirtruce Bender-Adams,

in April 2022. Randalf’s brother brought the defendant to help Randolf move.

However, instead of helping with the move, the defendant, who was in the

landscaping business, concerned himself with Randalf’s lawn mower. Overnight the

lawnmower disappeared, and Randalf accused the defendant of stealing it.

Approximately one month later Randalf was riding with his long-

standing friend, Quemonte Leonard, to Leonard’s home and saw the defendant

riding his dirt bike on the street. After Leonard drove to his home and went inside,

the defendant confronted Randalf about accusing him of stealing the lawn mower

and a shouting and pushing match ensued. As Randalf was walking into Leonard’s

home, the defendant punched him in the back of the head. Leonard came out of his house and told the defendant to chill and leave. In response, the defendant yelled,

“I will f*** you up.” (Tr. 1110 – 1111.)

Edward Harris and the defendant were long-standing friends. On

July 8, 2022, Harris had borrowed a white Toyota Camry that belonged to a female

friend, QuiShonti Trent. At approximately 7:00 a.m., Harris drove to the

defendant’s house because he was going to “front” the defendant marijuana for a

sale.

Harris then drove the defendant to Leonard’s house. Video cameras

from the area showed the white Camry heading toward Leonard’s house; one camera

stated the time as 8:37 a.m. Another camera showed the white car parked a few

houses away from Leonard’s home. Before entering Leonard’s house, the defendant

asked Harris for a pair of blue plastic gloves. At trial, Harris explained that Trent

was a state-tested nurse aide and thus had plastic gloves in the car and that it was

not unusual for people dealing in drugs to wear such gloves. (Tr. 1053.)

According to Harris, while the defendant was in the house, he heard

two gunshots. When the defendant returned to the car, Bender-Adams told Harris

that they had gotten into a physical altercation and that he had done what he felt he

had to do. (Tr. 1049.) The defendant still had marijuana. Video cameras showed a

man coming out of Leonard’s house and entering a white car on the passenger side.

Harris identified the passenger as the defendant and himself as the driver. Cell

phone records indicated that the defendant’s cell phone was in the area of Leonard’s

house on July 8, 2022, from 8:42 a.m. to approximately 9:05 a.m. Harris drove the defendant back to his home and left the car to relieve

himself. Upon returning to the car, the defendant stated, “I got to put the plate on

the car.” (Tr. 1061.) Later that day, Harris received a $1000 Cash App transaction,

presumably from Leonard. Harris admitted that he had been charged as a co-

defendant and pled guilty to involuntary manslaughter and complicity in aggravated

burglary as part of a plea agreement in which the State agreed to recommend a

prison sentence of no more than eight years.1

On July 8, 2022, at 9:23 a.m. police responded to a call of a male shot

at Leonard’s house. They found Leonard’s body lying in the front yard with four

shots in the back. A trail of blood led from the house, and the front door was open.

Investigation revealed signs of a struggle inside. Couches were flipped over, and

drawers had been pulled out. The officers found spent shell casings, a blood trail

and the finger of a blue glove. The DNA testing on the shell casings, the plastic glove

finger, Leonard’s fingernails, Trent’s car and the defendant’s boots could not

confirm that the defendant was at Leonard’s house.

A grand jury indicted the defendant for three counts of aggravated

murder, four counts of murder, two counts of aggravated burglary, one count of

burglary, two counts of felonious assault all with one- and three-year firearm

specifications and one count of having weapons while under disability. During the

pretrial proceedings, the defendant represented himself to argue two suppression

1 Harris faced the same charges as the defendant. motions. During the hearings on these motions, the trial court would not let him

confer with standby counsel. After the motions were overruled, the defendant

accepted representation again.

The jury found the defendant guilty of two counts of aggravated

murder, four counts of murder, two counts of aggravated burglary and one count of

burglary. The trial court found him guilty of having a weapon while under disability.

The trial court merged the murder, burglary and felonious assault counts and the

one- and three-year firearm specifications and then imposed a mandatory six years

for firearm specifications consecutive to life without parole for aggravated murder

consecutive to 36 months for having a weapon while under disability.

The defendant’s appellate counsel argued the following: (1) The trial

court erred when it admitted other-acts evidence regarding the defendant stealing a

lawn mower and assaulting another person; (2) The trial court erred when it did not

permit defense counsel to fully cross-examine Harris about the benefits he received

from his plea bargain; (3) The trial court inhibited the defendant from exercising his

right to self-representation when it would not allow him to ask standby counsel for

advice during the suppression hearing; (4) The convictions were not supported by

sufficient evidence and (5) The convictions were against the manifest weight of the

evidence. Appellate counsel also filed the following supplemental assignment of

error: The defendant was denied his right to the effective assistance of counsel as

guaranteed to him by the United States and Ohio Constitutions, specifically defense counsel did not investigate by not seeking doorbell cameras and did not retain expert

witnesses to counter the state’s witnesses.

The defendant now argues that his appellate counsel was ineffective.

Legal Analysis

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 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989); and

State v. Reed, 74 Ohio St.3d 534 (1996).

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.

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 (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 (1996).

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. Strickland at 694. A court need not determine whether counsel’s

performance was deficient before examining prejudice suffered by the defendant as

a result of alleged deficiencies. Bradley at 143.

Appellate review is strictly limited to the record. The Warder,

Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77 (1898). Thus, “a reviewing court

cannot add matter to the record that was not part of the trial court’s proceedings and

then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio

St.2d 402 (1978), paragraph one of the syllabus. “Nor can the effectiveness of appellate counsel be judged by adding new matter to the record and then arguing

that counsel should have raised these new issues revealed by the newly added

material.” State v. Moore, 2001-Ohio-1892. “Clearly, declining to raise claims

without record support cannot constitute ineffective assistance of appellate

counsel.” State v. Burke, 2002-Ohio-5310, ¶ 10.

The defendant’s first argument is that the state used perjured

evidence to convict him. He proposes that Harris’ girlfriend, QuiShonti Trent, was

not a state-tested nurse’s aide as Harris testified that she was but rather, she worked

at a day care as she told detectives in an interview. The defendant continues that if

she was just a day-care worker, then there would be no reason for her to have blue

gloves in her car and this undermines the State’s case. Next, he argues that Harris

did not receive the Cash App transaction on July 8, 2022, but two weeks later. He

does not specify how he knows this except that “[e]vidence provides that Harris

requested from his Cash App to Leonard’s Cash App $1000 and received payment

several weeks after the crime.” (Application, paragraph two.)

Under Illinois v. Napue, 360 U.S. 264 (1959), and State v. Buehner,

2021-Ohio-4435, ¶ 74 (8th Dist.), to establish a perjury claim, “a defendant must

show (1) testimony was false, (2) the testimony was material, and (3) the prosecution

knew it was false.” Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). “The burden is on

the defendants to show the testimony was actually perjured, and mere

inconsistencies in testimony by government witnesses does not establish knowing

use of false testimony.” Id. “[A] false statement is material for Brady purposes ‘if the false testimony could . . . in any reasonable likelihood have affected the judgment

of the jury . . . .’”

The defendant has not sustained this burden. Working at a day care

facility does not preclude Trent from being a state-tested nurse aide. Being trained

in providing basic daily care for people would be advantageous in such a profession.

Moreover, even if she was not a state-tested nurse aide, she could still have gloves in

her car in July 2022, when the country was coming out of the pandemic.

Inconsistencies between a witness’s sworn statement and another

person’s unsworn statement does not necessarily establish perjury. Mere

inconsistencies in testimony by government witnesses do not establish knowing use

of false testimony by the state. State v. Johnson, 2015-Ohio-4903, ¶ 83, and United

States v. Lockmondy, 80 F.2d 817 (6th Cir. 1989). Furthermore, the falsity of a

sworn statement is not shown by proof of an unsworn contradictory statement,

because credit must be given to what a witness says under oath rather than what a

witness said when not under oath. Richardson v. State, 45 Ohio App. 46 (8th Dist.

1933). It is difficult to conclude that Harris’ remark that his girlfriend had gloves in

her car because she is a state-tested nurse aid affected the jury’s judgment. This was

a tangential remark, especially since the DNA test of the glove did not confirm that

the defendant wore it.

The defendant does not state what his source is for the claim that

Harris received $1000 from Leonard’s Cash App two weeks after Leonard died.

Without stating his source, he cannot establish that Harris’ testimony was false much less that the State knew it was false. All of the testimony during trial about

the Cash App was that Harris received the money the same day.

The defendant’s second argument is that his trial counsel was

ineffective for failing to investigate the incident, proffer exculpatory evidence and

object to the perjured testimony. His first point of contention seems to be that the

video evidence only shows the suspect leaving the house. There is no video of a

suspect entering the house. The defendant argues that further investigation,

including from the detectives, would have established that no one went into

Leonard’s house, thus undermining the State’s case and creating a reasonable doubt.

Similarly, he argues that his defense counsel should have called Trent as a witness,

because she would have testified that she works at a day care, is not a state-tested

nurse aide and would not and did not have blue gloves in her car. Likewise, the

defendant argues that trial counsel was ineffective for not showing that Harris

received the $1000 Cash App two weeks later, rather than the day of the murder.

The defendant continues that if presented this would have shown that Harris was

lying and that the defendant was not in Leonard’s house on July 8, 2022.

Appellate counsel could not have successfully raised any of these

arguments in the direct appeal because they would require speculation or

consideration of evidence that is outside of the record. State v. Bays, 1999-Ohio-

216. Prejudice from the failure to investigate is speculative when the record does

not show what investigations trial counsel had performed or what information

might have “turned up.” State v. Bridges, 2015-Ohio-1447, ¶ 13 (8th Dist.) After reviewing the trial transcript, this court concludes that the failure of trial counsel to

object to Harris’ testimony does not undermine this court’s confidence in the

verdict.

Finally, the defendant argues that the verdict was against the manifest

weight of the evidence, because of the lack of video showing him entering the house,

the paucity of evidence showing his relationship with Leonard and the lack of DNA

evidence showing he was in the house show that he did not commit the crime.

However, appellate counsel argued manifest weight when he forcefully concluded

the brief: “No reasonable fact-finder could find Bender-Adams was identified as the

perpetrator of these crimes. The physical evidence was completely lacking. The

testimony of Edward Harris was the only evidence pointing towards Bender-Adams,

but that testimony can be easily disregarded as coming from a known liar whose

freedom was saved by telling one mor lie.” Following the admonitions from the

Supreme Courts, this court will not second guess appellate counsel’s strategy and

tactics in arguing manifest weight in this case.

Accordingly, this court denies the application to reopen.

______________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

EMANUELLA D. GROVES, J., and SEAN C. GALLAGHER, J., CONCUR