[Cite as State v. Logan, 2012-Ohio-5713.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97022
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MONTEZ LOGAN
DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-540250 Application for Reopening Motion No. 457035 RELEASE DATE: November 30, 2012
APPELLANT
Montez Logan, pro se Inmate No. A603004 Lorain Correctional Institution 2075 South Avon-Belden Road Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor James M. Price Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.: {¶1} On July 23, 2012, the applicant, Montez Logan, pursuant to
App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204
(1992), timely applied to reopen this court’s judgment in State v. Logan, 8th
Dist. No. 97022, 2012-Ohio-1944, in which this court affirmed Logan’s
convictions and sentences for two counts of aggravated murder, three counts
of attempted aggravated murder, with one and three-year firearm
specifications, and one count of having a weapon under disability.1 Logan
now maintains that his appellate counsel should have argued that his trial
counsel was ineffective in the following ways: (1) she did not request his
presence at a jury view of the crime scene; (2) she did not call various
witnesses to support his defense; (3) she did not have an investigator to
investigate his alibi defense; and (4) she did not seek to replace sleeping
jurors. On August 9, 2012, the state of Ohio filed its brief in opposition. For
the following reasons, this court denies Logan’s application to reopen.
{¶2} 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
1 At approximately 8:30 p.m. on July 17, 2010, five men were socializing outside a house, when two men approached and fired on them with an AK-47. The five men tried to flee. Two were killed, one was shot in the foot, another injured his foot, and the other escaped unharmed. Two (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); State v.
Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶3} 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.
{¶4} 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
eyewitnesses identified Demetrius Allen and Montez Logan as the two assailants. (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-Ohio-366, 672 N.E.2d 638.
{¶5} 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.
{¶6} Furthermore, appellate review is strictly limited to the record.
The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97
(1898). “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, 93
Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of
appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776
N.E.2d 79, ¶ 10.
{¶7} Logan’s first argument is that his trial counsel was ineffective for
not requesting that he be present during the jury view. He claims that his
absence prevented him from requesting certain observations that would later
bolster his case that certain witnesses could not have seen what they claimed.
{¶8} The record shows that the jury did view the crime scene.
However, it is silent as to who was or was not present, to what was observed,
and to what was requested. In State v. Richey, 64 Ohio St.3d 353, 367,
1992-Ohio-44, 595 N.E.2d 915, the Supreme Court of Ohio ruled that a “court
cannot presume prejudice from an unrecorded visit to a crime scene.”
Therefore, this argument fails because Logan cannot establish prejudice.
Additionally, a “view of a crime scene is neither evidence nor a critical stage
in the proceedings.” Id. Thus, Logan did not have a right to be present at
the view. Accordingly, it is understandable that appellate counsel in the
exercise of professional judgment would decline to argue this point.
{¶9} Logan also argues that his trial counsel was ineffective for failing
to call additional witnesses on his behalf. He submits that these witnesses
would have testified that they “suspected Arsenio Smith of committing the
murders.” (Pg. 4 of application.) During the cross-examination of the investigating police officers, defense counsel elicited that various individuals
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[Cite as State v. Logan, 2012-Ohio-5713.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97022
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MONTEZ LOGAN
DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-540250 Application for Reopening Motion No. 457035 RELEASE DATE: November 30, 2012
APPELLANT
Montez Logan, pro se Inmate No. A603004 Lorain Correctional Institution 2075 South Avon-Belden Road Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor James M. Price Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.: {¶1} On July 23, 2012, the applicant, Montez Logan, pursuant to
App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204
(1992), timely applied to reopen this court’s judgment in State v. Logan, 8th
Dist. No. 97022, 2012-Ohio-1944, in which this court affirmed Logan’s
convictions and sentences for two counts of aggravated murder, three counts
of attempted aggravated murder, with one and three-year firearm
specifications, and one count of having a weapon under disability.1 Logan
now maintains that his appellate counsel should have argued that his trial
counsel was ineffective in the following ways: (1) she did not request his
presence at a jury view of the crime scene; (2) she did not call various
witnesses to support his defense; (3) she did not have an investigator to
investigate his alibi defense; and (4) she did not seek to replace sleeping
jurors. On August 9, 2012, the state of Ohio filed its brief in opposition. For
the following reasons, this court denies Logan’s application to reopen.
{¶2} 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
1 At approximately 8:30 p.m. on July 17, 2010, five men were socializing outside a house, when two men approached and fired on them with an AK-47. The five men tried to flee. Two were killed, one was shot in the foot, another injured his foot, and the other escaped unharmed. Two (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); State v.
Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶3} 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.
{¶4} 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
eyewitnesses identified Demetrius Allen and Montez Logan as the two assailants. (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-Ohio-366, 672 N.E.2d 638.
{¶5} 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.
{¶6} Furthermore, appellate review is strictly limited to the record.
The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97
(1898). “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, 93
Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of
appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776
N.E.2d 79, ¶ 10.
{¶7} Logan’s first argument is that his trial counsel was ineffective for
not requesting that he be present during the jury view. He claims that his
absence prevented him from requesting certain observations that would later
bolster his case that certain witnesses could not have seen what they claimed.
{¶8} The record shows that the jury did view the crime scene.
However, it is silent as to who was or was not present, to what was observed,
and to what was requested. In State v. Richey, 64 Ohio St.3d 353, 367,
1992-Ohio-44, 595 N.E.2d 915, the Supreme Court of Ohio ruled that a “court
cannot presume prejudice from an unrecorded visit to a crime scene.”
Therefore, this argument fails because Logan cannot establish prejudice.
Additionally, a “view of a crime scene is neither evidence nor a critical stage
in the proceedings.” Id. Thus, Logan did not have a right to be present at
the view. Accordingly, it is understandable that appellate counsel in the
exercise of professional judgment would decline to argue this point.
{¶9} Logan also argues that his trial counsel was ineffective for failing
to call additional witnesses on his behalf. He submits that these witnesses
would have testified that they “suspected Arsenio Smith of committing the
murders.” (Pg. 4 of application.) During the cross-examination of the investigating police officers, defense counsel elicited that various individuals
had told the officers that Arsenio might have been the perpetrator. Logan
now claims that these witnesses could have bolstered that evidence.
{¶10} However, the record does not verify what the testimony of these
witnesses would have been. Without that, appellate counsel and this court
could only speculate what the testimony would have been and whether that
would have been helpful to Logan. Speculation is insufficient for making an
appellate argument and does not establish prejudice. State v. Addison, 8th
Dist. No. 90642, 2009-Ohio-221, reopening disallowed 2009-Ohio-2704; and
State v. Abdul, 8th Dist. No. 90789, 2009-Ohio-225, reopening disallowed,
2009-Ohio-6300. Moreover, the decisions on what evidence to present fall
within the realm of trial strategy and tactics that will ordinarily not be
disturbed on appeal. State v. Warner, 8th Dist. No. 95750, 2011-Ohio-4096,
reopening disallowed, 2012-Ohio-256.
{¶11} Similarly, Logan’s next argument is also unpersuasive. He
claims that his trial counsel did not have an investigator to investigate his
alibi defense or that she failed to investigate it herself. During trial, Logan,
Allen, Allen’s brother, and a friend of Allen’s brother, all testified that on the
day of the shooting, Allen and Logan took Allen’s brother and his friend to a
shoe store at Lee and Harvard and then took them home. Allen, Logan, and
the brother indicated that this trip took place between 6:30 and 8:30 p.m., so that Allen and Logan would not have had time to travel to East 123rd and
Signet, the location of the crime, to have committed it at approximately 8:30.
The friend indicated that the trip might have been earlier in the day. Logan
also maintained that after returning Allen’s brother and the friend to their
home, he and Allen stopped at a liquor store and went to a friend’s house.
Logan now complains that his trial counsel did not investigate this alibi
enough, such as seeking the film from the stores’ surveillance cameras.
{¶12} However, the record shows that defense counsel did have an
investigator who participated in the preparation of the case. Nevertheless,
this argument is dependent on speculation. The record does not indicate
whether either defense counsel or the investigator went to the stores, whether
anyone there had any recollection of that day, whether there were working
cameras, whether the films were preserved, or what they showed. Without
the answers to those questions, appellate counsel and this court could only
speculate on what the evidence would have shown. That is not the basis for
a sound appellate argument, and prejudice cannot be established.
{¶13} Logan’s final argument is that “trial counsel was ineffective for
remaining silent to replace other sleeping jurors.” Toward the end of the
trial, defense counsel raised the issue with the judge that jurors 1 and 3 were
sleeping at various times during the trial. The judge questioned both jurors.
Juror number 3 admitted to sleeping during the trial, and the judge replaced him with an alternate. Juror number 1 denied sleeping, and defense counsel
did not ask for his removal. Beyond this, the record is not clear as to
whether any other jurors may have been sleeping during the trial.
{¶14} Appellate counsel addressed this issue in the third assignment of
error: “Appellant was denied a fair trial and his right to due process by at
least one juror sleeping during the testimony and the court not properly
dealing when it was brought to its attention.” The gravamen of this
argument was that the trial court erred in waiting until the close of evidence
to investigate, instead of addressing the issue when defense counsel raised it.
Following the admonition of the Supreme Court, this court will not question
the reasonable professional judgments of counsel in framing issues supported
by the record, as compared to others that have less support. Moreover,
Logan did not explicitly argue this issue in his application.
{¶15} Accordingly, this court denies the application to reopen.
MARY EILEEN KILBANE, JUDGE
PATRICIA A. BLACKMON, A.J., and SEAN C. GALLAGHER, J., CONCUR