State v. Hubbard

2024 Ohio 2161

Opinion

[Cite as State v. Hubbard, 2024-Ohio-2161.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111939 v. :

QUINCY HUBBARD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: May 31, 2024

Cuyahoga County Court of Common Pleas Case No. CR-20-655277-B Application for Reopening Motion No. 570727

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Alan F. Dowling, Assistant Prosecuting Attorney, for appellee.

David L. Doughten, for appellant.

MARY J. BOYLE, J.:

On December 26, 2023, the applicant, Quincy Hubbard, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Hubbard, 8th Dist. Cuyahoga No. 111939, 2023-Ohio-3468, which affirmed his conviction and sentence

for felonious assault. He argues that his appellate counsel should have argued the

following: (1) the trial court improperly instructed the jury to consider Count 3 of

the indictment, felonious assault; (2) the trial court erred by allowing the jury to

consider unfairly prejudicially irrelevant evidence that allowed the state to use a law

enforcement witness to vouch for the credibility of a cooperating witness; and (3)

trial counsel was ineffective for not moving to dismiss the felonious assault count as

a legal fiction and for failing to object to Anthony Wilson’s testimony that Hubbard

bullied the victim. On January 24, 2024, the state of Ohio filed its brief in

opposition. For the following reasons, this court denies the application.

Factual and Procedural Background

Anthony Wilson is Malik Moore’s uncle. Several years before the

murder, Wilson and Moore were playing basketball with Hubbard and Hubbard’s

friend, Deandre Price. During this game, a fight broke out in which Moore and

Wilson were fighting against Hubbard and Price. Wilson testified that in the

ensuing years, Hubbard bullied Moore and there were several “scuffles” between

them. (Tr. 830-834.) Other evidence showed one of these “scuffles” occurred on

August 11, 2020. (Tr. 679, 1052, 1090, 1124.)

On the evening of September 12, 2020, Price spotted Moore shopping

at a CVS drug store and a smoke shop. Video surveillance cameras showed Price

exiting from his Dodge Charger by the smoke shop after Moore had entered and then

getting back into his car. (Tr. 466, 1068.) That was at 10:01 p.m. Cell phone records showed that Price called Hubbard several times. (Tr. 1060, 1070-1072.) Price then

picked up Hubbard, who drove the car. At 10:07, they had found Moore. (Tr. 1060.)

Price exited the vehicle and emptied his Glock 17’s clip into Moore. Surveillance

video recorded the sound of 17 shots (tr. 459); the police recovered 13 shell casings

(tr. 458), and Moore was hit nine times. (Tr. 1038.) Hubbard could not look at the

shooting and was in shock. He was so upset that he could not drive properly. Price

took over the driving; Hubbard ran around the back of the car and got into the

passenger seat. (Tr. 290-291, 694-695.)

Price drove to his home, where he lived with Tyrell Wilkins and Jerry

Howard. Although Howard was at his girlfriend’s home, Price insisted that Howard

return to their house. (Tr. 685.) Once there, Price told him what happened in

considerable detail, including that Moore’s pants had fallen down during the

shooting and that Price had walked up to the body and kicked Moore in the head to

make sure he was dead. Howard noted that Hubbard was in shock and did not say

much, except that he could not stomach the shooting, that he ducked his head, and

that it felt like the bullets were entering him. At Price’s request, Wilkins took the

gun and disposed of it. (Tr. 691-697.)

Later in 2020, Howard was charged with a federal firearm offense. In

December, he made a proffer to the Cleveland Heights police in the hope of receiving

a reduced sentence for the federal charge. (Tr. 674, 702.) He related that Price

insisted that he come home and what Price and Hubbard said that night. From their investigation, the Cleveland Heights police learned that

Price and Hubbard were involved with the murder. Witnesses on the street related

that after they heard the gunshots, they heard a car speeding away, but that it slowed

down and that it had distinctive taillights. (Tr. 618-620.) This led them to realize

that the car was Price’s Dodge Charger. The police also learned of the fights and

scuffles among the parties, and they were able to obtain significant evidence through

cell phones.

In January 2021, the grand jury indicted Price and Hubbard for

aggravated murder, murder, and felonious assault with one- and three-year firearm

specifications. It indicted Wilkins for tampering with evidence and obstruction of

justice, both with one-year firearm specifications.

Before trial, Hubbard’s attorney moved to sever because of Howard’s

anticipated testimony, which the attorney argued would be impermissible hearsay

and crippled the defendants’ ability to cross-examine. The state countered that

Howard’s testimony was not hearsay because the defendants’ statements were

statements made by a party-opponent under Evid.R. 801. The trial court denied the

motion to sever and allowed Howard’s testimony.

At trial, Howard testified pursuant to his proffer. He said that while

driving home, he checked his house camera, which showed Hubbard exiting Price’s

car from the passenger side and Price exiting from the driver’s side. When he was

in the house, Price rushed up and told him what happened, specifically that when

Price saw Moore at the smoke shop, he called Hubbard to meet him outside so they could get Moore. (Tr. 689.) When they found Moore, Price, who was in the

passenger seat, got out, tried to blind Moore with the tactical light on his Glock 17,

and then unloaded the clip at him. Howard saw blood on Price’s pants, and Price

told him that he had kicked Moore in the head to make sure he was dead. Hubbard

was in such shock that he could not drive the car, so Price took over driving.

Hubbard told Howard that he could not stomach the shooting, he ducked his head

down so as not to see it and that if felt like the bullets were entering him.

Cleveland Heights Police Officer Robinson testified on the course of

the investigation: how they linked the Dodge Charger to Price, how cell phone

records indicated where the defendants were and their communication with each

other, and how Howard’s proffer was consistent with their investigation. (Tr. 1044-

1100.)

The jury convicted Price of aggravated murder, murder, and felonious

assault with the firearm specifications. The trial court merged the three convictions,

and the state of Ohio elected to sentence on aggravated murder. The trial court

sentenced Price to 28 years to life. The jury found Hubbard not guilty of aggravated

murder and not guilty of murder but found him guilty of felonious assault and not

guilty of the firearm specifications. At sentencing, the trial judge said that Hubbard

was “the luckiest guy in the world” because if the jury had understood the complicity

instruction, it would have found him guilty of aggravated murder. (Tr. 1376 -1377.) After noting Hubbard’s prior misdemeanor convictions, the trial court sentenced

him to 8 to 12 years.1

Hubbard’s appellate counsel argued the following: (1) Hubbard was

denied a fair trial when the trial court failed to disallow Howard’s hearsay testimony

or in the alternative failed to sever Hubbard’s trial from Price’s trial; (2) The trial

court erred by failing to grant the motion for judgment of acquittal as to the felonious

assault charge because the state presented insufficient evidence to sustain a guilty

verdict; (3) Hubbard’s conviction for felonious assault was against the manifest

weight of the evidence; (4) The trial court erred in imposing an indefinite sentence,

because the Reagan Tokes Act is unconstitutional; and (5) The trial court abused its

discretion by considering matters of which Hubbard had not been convicted when

imposing sentence.

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, 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,

1996-Ohio-21, 660 N.E.2d 456.

1 Tyrell Wilkins pleaded guilty to attempted tampering with evidence with the deletion of the one-year firearm specification. The state nolled Count 5, and the trial court sentence him to 18 months community control. 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, 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).

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.

Hubbard’s first argument is that the trial court erred in instructing

the jury on Count 3, felonious assault, because given the facts of this case, felonious

assault is a legal fiction. Price emptied the clip into Moore and killed him. This is

murder and not merely felonious assault. As the Supreme Court of Ohio stated in

State v. Loudermill, 2 Ohio St.2d 79, 83, 206 N.E.2d 198 (1965), “Where, under the

evidence, it is clear and convincing that the force and violence complained of by the

state killed the deceased, a charge of assault and of assault and battery is improper.”

Alternatively, Hubbard argues that his trial counsel was ineffective for failing to

argue for a directed verdict on felonious assault because in this case it is a legal

fiction.

However, the Supreme Court of Ohio in Loudermill, also recognized

the dilemma facing defendants and their attorneys. On the one hand, if a “defendant is not guilty of murder, his liberty should not be dickered away by a compromised

verdict upon another crime,” which is not supported by evidence. On the other

hand,

if evidence tending to prove a lesser included offense is present and a jury is inhibited by the charge from finding the defendant guilty thereof, the collective conscience of that body may too easily be disposed to fabricate the elements of the crime charged in the indictment and to find defendant guilty as charged rather than risk, by a verdict of acquittal, turning the malefactor loose upon a society grievously harmed by his act.

Id. at 81.

In the present case, Hubbard’s appellate counsel made a forceful

argument that there was insufficient evidence to support Hubbard’s conviction for

felonious assault. Specifically, there was no evidence that Hubbard acted knowingly

or that he did anything to cause serious physical harm. Other than Howard

testifying that Price had called him and that he was waiting for Hubbard so they

could “get” Moore, there was no evidence of Hubbard’s intent.

There is no evidence that Mr. Hubbard did anything other than drive the vehicle. There was no evidence about a plan to jump Malik or physically harm him in any way. Given that the State failed to present sufficient evidence that Mr. Hubbard acted knowingly or caused any harm to Malik Moore, nor is there any evidence of Mr. Hubbard acquiescing in any plan to do so.

(Emphasis in original) (Appellant’s brief page 13.) The court further notes that

Howard testified that Hubbard was repulsed by the shooting and was in shock.

Following the admonition of the United States Supreme Court, this court will not

second-guess appellate counsel’s strategy and tactics in making this sufficiency-of-

the-evidence argument rather than making a Loudermill argument. Similarly, trial counsel moved for a directed verdict pursuant to

Crim.R. 29 for the felonious assault count and the trial court denied the motion.

This court notes that unlike Loudermill, 2 Ohio St.2d 70, 206 N.E.2d 198, that

considered an unindicted lesser included offense, felonious assault was an indicted

offense. This court, after examining all of the evidence, reached the same conclusion

as the trial court that the state had presented sufficient evidence to “establish that

Hubbard was complicit in the shooting of Moore and, thus, knowingly caused Moore

serious physical harm.” Hubbard, 2023-Ohio-3468, at ¶ 47. Thus, it is difficult to

opine that the trial court erred in instructing on felonious assault or that trial counsel

was ineffective for not making a different argument to dismiss the felonious assault

count.

Moreover, in State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18

N.E.2d 1207, the Supreme Court of Ohio held that the trial court must give an

instruction on a lesser included offense if under any reasonable view of the evidence,

it is possible for the jury to find the defendant not guilty of the greater offense and

guilty of the lesser offense. In the present case, the jury could reasonably find that

Hubbard did not intend to kill Moore but only to hurt Moore, as evidenced by the

ambiguous testimony about “getting” Moore and Hubbard’s reaction during and

after the killing.

Furthermore, defense counsel’s decisions on requesting jury

instructions are an issue of strategy and tactics and do not establish ineffective assistance of counsel. Wine, supra; State v. Griffie, 74 Ohio St.3d 332, 658 N.E.2d

764 (1996); and State v. Taylor, 8th Dist. Cuyahoga No. 79274, 2003-Ohio-2295.

Hubbard’s next argument is that the trial court erred in allowing

Officer Robinson to vouch for the truthfulness of Howard’s testimony. Hubbard

relies upon State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050;

State v. Boston, 46 Ohio St.3d 108, 530 N.E.3d 409 (1988); State v. Huff, 145 Ohio

App.3d 555, 763 N.E.2d 695 (1st Dist.2001); and State v. Zimmerman, 2019-Ohio-

721, 132 N.E.3d 1185 (10th Dist.); United States v. Cruz, 981 F.2d 659 (2d Cir.1992).

In each of these cases the witnesses — police officers and a school counselor —

opined that the witnesses were truthful. The courts held this was impermissible.

In the present case, Officer Robinson did not explicitly opine that

Howard was truthful. Rather, he noted that what Howard said was consistent with

the evidence found at the crime scene and obtained from the DNA analysis and the

cell phones. In United States v. Lewis, 10 F.3d 1086 (4th Cir.1993), the appellate

court addressed this issue. It held that the subject testimony was not impermissible,

because the officer did not testify as to anyone’s trustworthiness. Rather, the officer

testified about the investigative techniques used. The state has the right to explain

its procedures and the relationship between the state and its witnesses. Similarly,

in United States v. Francis, 170 F.3d 546 (6th Cir.1999), the court ruled that a

prosecutor may ask a government agent whether he was able to corroborate what he

learned in the course of the investigation; in doing so, the prosecutor must also

present testimony explaining how the information was corroborated and where it originated, e.g., obtaining cell phone records that show when and to whom calls were

made. In State v. Shropshire, 8th Dist. Cuyahoga No. 104775, 2017-Ohio-8308, this

court also upheld a police officer’s similar corroboration of an informant’s proffer.

Accordingly, appellate counsel, in the exercise of professional judgment, properly

declined to raise this argument.

Hubbard’s final argument is that trial counsel was ineffective for not

objecting to Anthony Wilson’s testimony that Hubbard bullied Moore over the years.

Hubbard’s counsel did object to the hearsay nature of Wilson’s testimony, and the

trial court sustained the objection. (Tr. 859.) Moreover, Hubbard does not argue

prejudice in relation to Wilson’s testimony. After reviewing the testimony again,

this court is not convinced that further objections would have made a difference.

The court’s confidence in the outcome of the case is not undermined.

Accordingly, this court denies the application to reopen.

MARY J. BOYLE, JUDGE

MICHELLE J. SHEEHAN, P.J., and LISA B. FORBES, J., CONCUR