State v. Lucas

2021 Ohio 437

• Court: Ohio Court of Appeals
• Decided: February 12, 2021
• Docket: 108436
• Status: Published

Opinion

[Cite as State v. Lucas, 2021-Ohio-437.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108436 v. :

CHARLES LUCAS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: February 12, 2021

Cuyahoga County Court of Common Pleas Case No. CR-16-609934-A Application for Reopening Motion No. 540187

Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.

Charles Lucas, pro se.

FRANK D. CELEBREZZE, JR., J.:

On July 27, 2020, the applicant, Charles Lucas, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. Lucas, 8th Dist. Cuyahoga

No. 108436, 2020-Ohio-1602, which affirmed his convictions for attempted murder and breaking and entering. Lucas now submits that his appellate counsel should

have argued that there was no probable cause to justify a grand jury indictment, an

arrest, or prosecution because the state used perjured testimony and fraudulently

contrived misrepresentations. The state of Ohio filed its brief in opposition on

August 7, 2020, and Lucas filed a reply brief on August 18, 2020. For the following

reasons, this court denies the application.

Factual and Procedural Background

Charles Lucas and Kimberly Parker were in a tumultuous relationship

that began in 2010. Although they traveled a lot, they lived together whenever they

could and even jointly bought a house in Florida. Parker testified that Lucas was a

controlling and abusive individual, who had to know her location, her email, and her

passwords. She continued that he took offense at her interactions with other men

and that she tried to end their relationship several times.

Lucas testified that generally the relationship was good and that he

sought to look after Parker but not control her. Indeed, many of her representations

of him were lies. Nonetheless, he decided to end their relationship in 2015, because

she yelled and argued too much. However, they remained in contact because they

were working in the same industry and needed to resolve some property issues.

Parker testified that she decided to end their relationship in May

2016, when she was working in Wisconsin. To get away from Lucas, she quit her

job, changed all of her passwords, and went to her home on East 131st Street in

Garfield Heights. When she went to bed that night, she locked her bedroom door and the door to a “sitting room” outside of her bedroom. The next morning, between

9:00 and 9:30, she heard someone trying to enter her bedroom. When she asked

who was there, she recognized Lucas’s voice. She told him to go away and called 911

to report an intruder. She told Lucas that the police were coming. Lucas tried to

force the door. Parker then remembered that Lucas kept a 9 mm handgun in the

bedroom. She retrieved it and ordered him not to come into the room. When he

continued his efforts, she shot through the door toward the ground. A bullet lodged

in a wall in the next room. Parker called 911 again and advised that she had fired the

gun. When the police arrived, they arrested her, and she was charged with

discharging a firearm in a prohibited premises and domestic violence. State v.

Parker, Garfield Heights M.C. No. CRB 1601150A.

Lucas was told that he needed to attend a July 5, 2016 pretrial hearing

in that case. Accordingly, he booked flights to come to Cleveland for the pretrial and

return to Florida on the morning of July 7. He also rented a white Ford Fusion and

booked lodging at a guesthouse in East Cleveland. Lucas testified that before the

pretrial the prosecutor informed him that he intended to dismiss the case against

Parker. Lucas further testified that this news angered him. The pretrial mainly

concerned setting another pretrial and figuring out when and how Parker could

retrieve her property from the home in Florida. Parker testified that during the

pretrial, Lucas called her a b****.

At approximately 2:40 a.m. on July 7, 2016, Parker woke up to the

smell of smoke. Upon further investigation, she noticed a hole in the window of her bedroom and that the blinds were burnt. She called the police and remained close

to the floor until their arrival. The police noted the bullet traveled through a wall

and left remains on a towel in the bathroom. Further investigation showed that a

gun was fired at near point-blank range to the window and that the bullet travelled

only a few feet above the sleeping Parker.

East 131st Street is a north-south street that intersects McCracken, an

east-west street, at a right angle. Garfield Heights has a service garage

approximately a half-mile to the east of 131st Street. The garage’s security camera

showed a white car traveling east on McCracken and at 2:11 a.m. a man walking

westbound on McCracken. The camera further showed a man at 2:43 a.m. running

eastbound on McCracken.

Further investigation showed that Lucas left the guesthouse at 1:30

a.m. on July 7. The investigating officer then obtained a search warrant for Lucas’s

cell phone records. Those showed that he was on Lee Road in Shaker Heights at

1:50 a.m., and very near McCracken Road at 2:50, by Broadway and I-480.

In September 2016, the Cuyahoga County Grand Jury indicted Lucas

for attempted murder with a three-year firearm specification, improperly

discharging a firearm into a residence, felonious assault, breaking and entering, and

domestic violence.1 The state later dismissed the domestic violence count. A jury

1 The evidence at trial indicated that Parker’s house was enclosed by a high fence. She testified that shortly before the shooting incident, the latch to the gate had been bent, so the gate could not be locked. found him guilty of the remaining counts. The trial judge merged the attempted

murder, felonious assault, and improper discharge counts and sentenced him a total

of 11 years.

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

due process of law and his right to counsel when his trial counsel displayed animus

toward and bias against him in a recorded conversation.2 (2) Lucas was denied due

process of law and his right to the effective assistance of counsel, when that counsel

left the courtroom during the examination of the government’s detective. (3) Lucas

was denied his right to counsel when the trial court instructed him that he could not

consult with counsel during a break in the trial. (4) The appellant’s convictions were

not supported by sufficient evidence. (5) The trial court committed plain error in

allowing testimony of alleged “other acts” of Lucas in addition to allowing evidence

that he was a controlling boyfriend. (6) Trial counsel was ineffective when he failed

to object to numerous instances of inadmissible evidence. (7) Trial counsel was

ineffective when he failed to offer a meaningful and reliable testing of the adversarial

system. (8) Lucas was denied a fair trial when a law enforcement officer was

permitted to testify as a geolocation expert using business records of the phone

company. (9) The trial court erred in allowing the prosecutor to present evidence of

2 In that conversation, Lucas’s retained counsel said that you do not want me picking your jury, if I am unpaid. Lucas’s prearrest silence.3 (10) The prosecutor committed prosecutorial misconduct

during closing argument when he made repeated attacks on defense counsel’s

honesty. Lucas now argues that his appellate counsel was ineffective.

Discussion of Law

An application for reopening must be granted “if there is a genuine

issue as to whether a defendant has received ineffective assistance of appellate

counsel on appeal.” App.R. 26(B)(5). The Supreme Court of Ohio has held that the

two-pronged analysis found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), is the appropriate standard when assessing whether

an applicant has raised a “genuine issue” as to the ineffectiveness of appellate

counsel in an App.R. 26(B) application. State v. Myers, 102 Ohio St.3d 310, 2004-

Ohio-3075, 810 N.E.2d 436.

Pursuant to Strickland, the applicant must demonstrate that

counsel’s performance was deficient and that the deficient performance prejudiced

the defense. 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.

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,

3 The investigating officer testified that after several phone conversations with Lucas, he left Lucas a message that Lucas needed to arrange an interview to clear up some things and that Lucas never called him back. 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). 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.

Moreover, even if a petitioner establishes that an error by his lawyer

was professionally unreasonable under the circumstances of the case, 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.

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

Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (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, 377 N.E.2d 500 (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, 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.

The gravamen of Lucas’s argument is that the state presented

perjured evidence or made multiple misrepresentations that nullify its case.4 Lucas

first argues that Parker perjured herself when she testified that Lucas called her a

4 Lucas states his proposed assignment of error as follows: “Appellate counsel was ineffective for failing to raise the issue, effectively argue or make as an error that there was no probable cause to justify a grand jury indictment, an arrest or prosecution violating Lucas’s Fourth Amendment Right to the U.S. Constitution by the state’s malicious prosecution of Lucas through fraudulently contrived misrepresentation(s) of evidence and the use of perjured testimony violating Prof. Cond. R. 3.8(A), Prof. Cond. R. 8.4, Evid. R. 403, and denying Lucas of his due process right.” b**** during the pretrial and that he was visibly angry and that he pulled his

attorney away in an attempt to have her charged with attempted murder. For proof

that this was a lie, he proffers a youtube video of the pretrial at

https://youtube/oloAy81GT9s. A review of the video shows Lucas making a remark

under his breath, not inconsistent with calling her a b****, and then being

admonished that the comment was out of line and for which Lucas apologized.

Although the video does not show Lucas arguing with the prosecutor, he admitted

when the prosecutor told him he was going to drop the charges, he was “F’ing pissed

off.” Tr. 671-673.

At the trial, immediately after questioning Parker about the pretrial,

the prosecutor asked her if the case was dismissed, to which she said “yes.” Tr. 287.

Lucas infers from this that she perjured herself by stating her case was dismissed on

July 5, when it was not dismissed until October. A review of the transcript shows

that she truthfully answered the prosecutor’s question. Thus, in reviewing Lucas’s

argument on the pretrial, the court is not convinced that Parker perjured herself.

To the extent that Lucas’s argument is that the perjury about the pretrial was

essential to finding probable cause for the search warrant, his arrest, indictment,

and conviction, it is ill-founded.

Lucas makes additional arguments to show that the state acted in bad

faith and did not have probable cause to prosecute him. He argues that the grand

jury indicted him for attempted felony murder, but the indictment shows the charge

was for attempted murder. He argues that there was no proof to support the three- year firearm specification. However, the bullet hole in the window, the gunshot

residue on the window, the hole in the wall, and bullet fragments found in the

bathroom leave little doubt that a firearm was used. Lucas also mentions that in

June, between the two incidents, he made a police report that Parker was harassing

and trying to extort him regarding their property issues. He alleges that sometime

during this process, the investigating officer made a racial slur. However, he does

not point to where in the record this is found. It is the appellant’s duty to point to

facts within the record that demonstrates error. Similarly, he contends that perjured

evidence was presented to the grand jury. However, he does not quote the actual

grand jury testimony, but relies on a police summary of evidence to be presented to

the grand jury. It is not the duty of the appellate court to search the record for

evidence to support the appellant’s argument. State v. Reeves, 10th Dist. Franklin

No. 09AP-493, 2010-Ohio-4018, and State v. McGuire, 9th Dist. Summit Nos.

16423 and 16431, 1994 Ohio App. LEXIS 5670 (Dec. 14, 1994).

Lucas also complains that when he reported Parker’s harassment, he

also reported that BCI had not yet processed the May shooting and that the Garfield

Heights officers did nothing. From this he argues that the officers were derelict in

their duties and showed animus against him. He also submits that because BCI was

not called, any evidence from the May shooting is inadmissible and could not

provide any basis for the search warrant against him. The court is not persuaded

that such omissions, if any, manifest animus against him. Similarly, he notes that one of the police reports indicates that the

quickest way for him to get to McCracken Road and Parker’s house would be to

travel west on McCracken, but the video shows the car traveling east. Again he

argues a lack of probable cause. Speculation on what should have been done does

not negate the evidence presented.

Lucas also relies heavily on newly discovered evidence for proof of

perjury and malice. The “Z” exhibits he attached to the application have receiving

dates of March and June 2020, well after the appeal had been filed. For purposes of

determining ineffective assistance of appellate counsel, such exhibits are irrelevant.

Appellate counsel and the appellate courts are bound by the record. It is

inappropriate to consider on appeal matters and evidence outside of the record.

Thus, to the extent that Lucas’s arguments are dependent on material outside the

record, his arguments are ill-founded.

In determining the sufficiency of a search warrant, the judge is to

make a practical, common-sense decision, based on the statements in the affidavit

and the evidence presented, whether there is a fair probability that evidence of a

crime will be found in a particular place. Given the tumultuous relationship between

Lucas and Parker, given the fact that she shot at him through a door, given his

admitted anger on July 5, that she would not prosecuted, and given the evidence of

a gunshot into her bedroom, it is understandable that appellate counsel would

decide in the exercise of professional judgment not argue the issue of probable cause

for the search warrant. Obtaining evidence of where Lucas was in the early morning of July 7, 2016, would help determine whether he did or did not commit the crime.

State v. Akers, 12th Dist. Butler No. CA1007-07-163, 2008-Ohio-4164.

Similarly, a grand jury indictment creates a presumption of probable

cause. State v. Thomas, 8th Dist. Cuyahoga No. 104174, 2017-Ohio-957. In the

present case, that presumption is bolstered by a jury conviction. To overcome both

presumptions by proving from the record that the indictment and the conviction

were secured by perjured evidence and a conspiracy of false and malicious

statements is an extraordinary task on appeal. This court has examined Lucas’s

arguments and his proffers and is not convinced that perjury and falsehood were the

basis for his indictment and conviction. Appellate counsel in the exercise of

professional judgment could properly decline to make Lucas’s proposed argument,

especially in view of the arguments he did make.

Accordingly, this court denies the application to reopen.

__ FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, A.J., and MARY EILEEN KILBANE, J., CONCUR