State v. Kukla

2023 Ohio 4209

• Court: Ohio Court of Appeals
• Decided: November 22, 2023
• Docket: 112277
• Status: Published

Opinion

[Cite as State v. Kukla, 2023-Ohio-4209.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112277 v. :

JAMAL KUKLA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 22, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-650912-A

Appearances:

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

Erin R. Flanagan, Esq., Ltd. and Erin R. Flanagan, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Jamal Kukla, appeals his conviction on multiple

counts related to the murder of Jasmine Washington. His sole contention on appeal is that he received ineffective assistance of trial counsel. For the reasons that follow,

we affirm.

In June 2020, Kukla was charged with two counts of aggravated

murder, unclassified felonies, pursuant to R.C. 2903.01(A) and (B); one count of

murder, an unclassified felony, pursuant to R.C. 2903.02(B); one count of

kidnapping, a first-degree felony, pursuant to R.C. 2905.01(A)(3); one count of

felonious assault, a second-degree felony, pursuant to R.C. 2903.11(A)(1); one count

of tampering with evidence, a second-degree felony, pursuant to R.C. 2921.12(A)(1);

and one count of gross abuse of a corpse, a fifth-degree felony, pursuant to

R.C. 2927.01(B).

The matter proceeded to a jury trial, at which the following pertinent

evidence was presented.

On September 17, 2018, Reverend Robert Spicer of Broadway Christian

Church in Cleveland, Ohio, called the church’s maintenance person to inform him

that a neighboring glass-blowing business called the church to complain of a strong

odor emanating from church grounds. The pastor asked the maintenance person,

Victor Mullenax, to investigate the origin of the odor. Upon investigation, Mullenax

discovered the body of a woman, later identified as Washington, partially buried

under a pile of debris. He immediately called the police.

Cleveland Police (“CPD”) Sergeant Scott Navratil and Officer Michael

Castiglione responded to the church just before 8:00 p.m. Officers Navratil and

Castiglione showed the jury body camera footage showing their arrival to the church. The footage depicts the officers encountering Washington’s body under a pile of

debris near the back of the building, near a gap in a fence that surrounded the

church’s yard. Washington’s body was found in a state of advanced decomposition,

and she was initially unidentifiable. Law enforcement eventually identified her by

the remnants of her fingerprints.

Detective Troy Edge testified about the crime scene photos and

identified the following items, which would later render DNA samples for testing: a

coat found in nearby garbage can; tan Croc sandals; a black and gray right-handed

work glove found in a field behind the church yard; a black and gray left-handed

work glove found in a nearby vacant lot; a black rubber handle found behind the

church; a tooth, surrounding dirt, “and a pooling of suspected blood,” which lay near

Washington’s body; a green lighter that was found in the grass nearby; a blood

covered flowerpot found by Washington’s body; and a black shirt located in the field

behind the church.

Police also found two tools, a garden shovel and a garden weasel (a tined

garden tool), covered in suspected blood, in the empty field behind the church. A

church member testified that he helped take care of the church grounds and kept his

tools near the church yard.

Dr. Erica Armstrong, a forensic pathologist for the Cuyahoga County

Medical Examiner’s Office, responded to the scene and later performed the autopsy

on Washington’s body. Dr. Armstrong testified that despite the advanced level of

decay, the severity of Washington’s injuries was apparent. According to Dr. Armstrong, Washington’s skull had radiating blunt force defects and lacerations

consistent with wounds from the garden weasel. Part of Washington’s skull had

fragmented off, her jaw was fractured in several places, and the tooth found near her

body was hers. Several punctures to Washington’s skull were forceful enough to

bevel the opposite side of her skull from the point of impact. Washington had

multiple injuries to her torso, including the right side of her chest and both thighs,

and she had wounds on her hands and arms, which were consistent with self-defense

injuries.

Dr. Armstrong testified that she worked with a forensic anthropologist

to reconstruct “a more complete skull” because of the extensive damage to

Washington’s head. Armstrong ruled Washington’s death a homicide caused by

blunt force and penetrating head trauma.

Forensic scientist Lisa Przepyszny testified she works with the

Cuyahoga County Regional Forensic Science Laboratory (“CCRFSL”) trace evidence

department, which collaborated with Dr. Armstrong. CCRFSL scientists took

photographs and conducted testing on Washington’s skull, the murder weapons,

and other items collected from the crime scene. Przepyszny testified that the left

side of Washington’s skull had a rectangular injury consistent with the tip of the

garden weasel. The right side of her skull and the area around her nose also suffered

puncture injuries similarly matched in size to the garden weasel’s tines. Przepyszny

concluded that two separate strikes to Washington’s face caused these wounds. CCRFSL DNA analyst Jeffrey Oblock testified he received the swabs

bearing DNA samples taken from the crime scene. Oblock testified that not every

swab contained enough intact DNA to test, but testable materials revealed that blood

on a cinderblock near Washington’s body was hers. Blood and DNA samples from

the coat, the shovel handle and shaft, and the handle and tines of the garden weasel

also belonged to Washington.

According to Oblock, many of the DNA samples had a specific

unknown male contributor. Oblock was able to use analytic software to confirm that

this unknown male’s DNA was in almost every test sample. Most of the DNA

samples did not have any statistically significant contributor other than Washington

and/or the unknown male contributor. Oblock testified that the analytic software

confirmed the percent Washington and the unknown male contributed to the extent

that the data ruled out any significant contribution by a party other than Washington

or the unknown male.

F.B.I. Special Agent Andrew Burke testified he was involved in the

case. Burke authenticated crime-scene photos and testified he obtained DNA

samples from members of the church community and the glass-blowing business to

eliminate them as suspects.

Law enforcement procured surveillance footage from the housing

complex where Washington lived. The footage showed Washington leaving her

apartment around 7:52 p.m., on September 11, 2018, returning briefly, and then

leaving at 8:24 p.m. wearing what appears to be the coat and Croc sandals later found at the crime scene. The video shows an individual riding past the housing

complex on a bicycle during that time.

Agent Burke testified that police received an investigative lead in

January 2020 that implicated Kukla. Law enforcement conducted surveillance and

obtained a DNA sample from Kukla by collecting a discarded cigar tip to compare to

the unknown male profile.

In May 2020, Agent Burke brought Kukla in for questioning and

obtained a buccal swab from him. During the interview, Agent Burke showed Kukla

pictures of Washington. Kukla indicated that he recognized Washington’s face and

that he had twice seen her around. Kukla indicated that he lived in the area around

49th Street and Broadway in 2018 and early 2019, less than a half-mile from the

housing complex where Washington lived, and about three-quarters of a mile from

the church where Washington’s body was found.

Oblock testified that, to a reasonable degree of scientific certainty, that

Kukla’s DNA was present on Washington’s coat, the inside and outside of the left

and the right work gloves, the garden shovel, and the garden weasel.

Kukla made a motion for acquittal pursuant to Crim.R. 29, which the

court granted as to aggravated murder and kidnapping. The trial court preserved

the lesser included charge of murder. Following deliberations, the jury convicted

Kukla of one count each of murder, pursuant to R.C. 2903.02(A); felony murder

predicated on felonious assault, pursuant to R.C. 2903.02(B); felonious assault, pursuant to R.C. 2903.11(A)(1); tampering with evidence, pursuant to

R.C. 2921.12(A)(1); and gross abuse of a corpse, pursuant to R.C. 2927.01(B).

The trial court merged Kukla’s convictions for murder, felony murder,

and felonious assault, and the state elected to proceed to sentencing on the murder

conviction. The trial court sentenced Kukla to a mandatory term of 15 years to life

in prison.

It is from this conviction that Kukla appeals, raising the following

assignment of error for our review:

I. Defendant-appellant was deprived of his Sixth Amendment right to the effective assistance of trial counsel by counsel’s pursuit of an unreasonable trial strategy in choosing not to identify the male in the state’s video evidence to the jury.

In his sole assignment of error, Kukla argues that his counsel was

ineffective for failing to argue to the jury that someone other than him was in the

state’s video.

To establish ineffective assistance of counsel, Kukla must establish

“(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that, but for counsel’s errors, the outcome of the proceeding would have

been different.” State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d

1034, ¶ 138, citing 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. The failure to prove either prong of this two-part test makes it unnecessary for a court to consider the other prong.

State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland

at 697.

A licensed attorney is presumed to be competent, and a defendant

claiming ineffective assistance bears the burden of proof. State v. Black, 2019-Ohio-

4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100,

477 N.E.2d 1128 (1985). “’A reviewing court will strongly presume that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.”’ State v. Powell, 2019-Ohio-4345, 134 N.E.3d

1270, ¶ 69 (8th Dist.), quoting State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-

Ohio-2175, ¶ 69.

According to Kukla, the state

introduced select forensic evidence, including a video of someone involved in Washington’s death who the prosecution argued was Defendant-Appellant. Protesting his innocence as Kukla did throughout the entire proceeding, he and his mother informed trial counsel that the person in the video was someone other than Kukla. Defendant-Appellant and his mother watched the video many times and shared their concerns with trial counsel. Kukla’s mother had (has) 100-percent certainty that the video depicts another – not only because “it’s not Jamal,” but also because she and Kukla are aware of the individual’s identity.

First, we note that Kukla does not identify which video or exhibit he is

challenging, nor identify where in the record the alleged error occurred. See

App.R. 12(A)(2) (An appellate court may disregard an assignment of error presented

for review if the party raising it fails to identify in the record the error on which the assignment of error is based.). Assuming, as the state does, that Kukla is referring

to the surveillance video that captured an individual riding a bicycle past

Washington’s housing complex around the time she left her apartment on the

evening in question, no witnesses identified the bicyclist as Kukla, and no witness

theorized that the bicyclist was involved in her death.1

Kukla argues that he and his mother told his attorney that the person

in the video was not him, but they knew the identity of the person. Kukla contends

that counsel chose not to use this information, and this decision could not be the

basis of any sound trial strategy; therefore, counsel was ineffective. Kukla states he

suffered substantial prejudice from the inability of the jury to consider other

suspects.

Kukla’s argument relies on information that is not in the record before

us. Recently, in State v. Jeter, 8th Dist. Cuyahoga No. 111881, 2023-Ohio-145, this

court reiterated that ‘“when an ineffective-assistance claim is based on evidence

outside the record, the proper vehicle for raising the claim is a petition for

postconviction relief, not a direct appeal.’” Id. at ¶ 17, quoting State v. Fisher, 8th

Dist. Cuyahoga No. 108494, 2020-Ohio-670, ¶ 22, citing State v. Kennard, 10th

Dist. Franklin No. 15AP-766, 2016-Ohio-2811, ¶ 24. See also State v. Maldonado,

9th Dist. Lorain No. 01CA007759, 2001 Ohio App. LEXIS 4014, 15 (Sept. 12,

1 In closing arguments, the state intimated that the bicyclist could have been Kukla;

however, the closing arguments of counsel are not evidence, see State v. Jackson, 2023-Ohio-455, 208 N.E.3d 1010, ¶ 45 (8th Dist.), nor has Kukla advanced a claim that the state prejudiced his right to a fair trial due to the prosecutor’s statements. 2001); State v. Irwin, 7th Dist. Columbiana No. 11CO6, 2012-Ohio-2704, ¶ 97

(“While evidence may exist outside the record to support an appellant’s contention

of ineffective assistance, a direct appeal is not the proper place to present this

evidence.”).

Kukla’s claim of ineffective assistance of counsel solely hinges on

conversations he and his mother allegedly had with trial counsel that are not part of

the trial court record. Consequently, a claim of ineffective assistance of counsel

based on Kukla’s argument herein is not properly before this court.

Kukla does not raise any other claim regarding counsel’s performance

and has not shown that he was prejudiced by any of counsel’s alleged errors;

therefore, Kukla has not established ineffective assistance of trial counsel.

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________ MICHAEL JOHN RYAN, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and SEAN C. GALLAGHER, J., CONCUR