State v. Owens

2 Ohio App. Unrep. 343
CourtOhio Court of Appeals
DecidedMarch 1, 1990
DocketCase No. 56577
StatusPublished

This text of 2 Ohio App. Unrep. 343 (State v. Owens) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Owens, 2 Ohio App. Unrep. 343 (Ohio Ct. App. 1990).

Opinion

MATIA, J.

Defendant-appellant, Wilford Owens, appeals from his conviction for one count of kidnapping and four counts of rape.

I. THE FACTS

A.THE INDICTMENT

On October 2, 1986, the appellant was indicted by the Grand Jury of Cuyahoga County for two counts of kidnapping in violation of R.C. 2905.01 and counts of rape with a violence specification in violation of R.C. 2907.02.

B.THE ARRAIGNMENT

On January 12, 1987, the appellant was arraigned wherein a plea of not guilty was entered to all six counts of the indictment.

C.THE JURY TRIAL AND VERDICT

On October 20, 1987, a jury trial was commenced with regard to all six counts of the indictment. At the close of the state of Ohio's case-in-chief, the trial court granted the appellant's Crim. R. 29(A) motion for acquittal and dismissed the second count (kidnapping) of the indictment. On October 22, 1987, the jury returned a verdict of guilty as to the one count of kidnapping and guilty as to the four counts of rape.

D.THE APPELLANT'S FIRST MOTION FOR NEW TRIAL

On November 3,1987, the appellant filed a motion for new trial pursuant to Crim R. 33. This motion for new trial was filed by appellant's original defense counsel and was premised upon newly discovered evidence vis-avis the boyfriend of the victim.

The trial court upon completion of an oral hearing, denied the appellant's first motion for new trial.

E.THE APPELLANT'S SECOND MOTION FOR NEW TRIAL

On February 12,1988, the appellant filed a second motion for new trial pursuant to Crim. R. 33. This second motion for new trial, as filed by newly retained counsel, was also premised upon newly discovered evidence which had not been presented at trial.

Once again, the trial court denied the appellant's second motion for new trial upon completion of an oral hearing.

F.THE SENTENCE OF THE TRIAL COURT

On August 29, 1988, the trial court sentenced the appellant to incarceration within the CorrectionalReception Center, Orient, Ohio, for a term of five years to twenty-five years with regard to each count of rape and three years to fifteen years with regard to the one count of [344]*344kidnapping. The trial court further ordered that the terms of incarceration run concurrent with each other.

G. THE APPELLANT'S APPEAL

Thereafter, the appellant timely brought the instant appeal from his conviction for one count of kidnapping and four counts of rape.

In order to facilitate the instant appeal, this court shall initially examine the appellant's third assignment of error (ineffective assistance of counsel) and then proceed to an examination of the appellant's first assignment of error (manifest weight) and the appellant's second assignment of error (denial of the first motion for new trial).

II. THE APPELLANT’S THIRD ASSIGNMENT OF ERROR

The appellant's third assignment of error is that:

"THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."

A.ISSUED RAISED: APPELLANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL

The appellant, in his third assignment of error, argues that he was denied effective assistance of counsel during the course of trial and subsequent to trial through newly retained counsel. Specifically, the appellant argues two claims of ineffective assistance of counsel: 1) failure of defense counsel to call known witnesses at trial in order to impeach the credibility of the victim; and 2) the failure of newly retained counsel to file a post-conviction motion for relief premised upon ineffective assistance of counsel.

This assignment of error is well taken.

B.STANDARD OF REVIEW FOR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

In order to substantiate a claim of ineffective assistance of counsel, the appellant must demonstrate that his counsel deprived him of a fair trial. The appellant must demonsrate that: 1) defense counsel's performance at trial was seriously flawed and deficient; and 2) the result of the trial would have been different if defense counsel had provided proper representation at trial. Strickland v. Washington (1984), 466 U.S. 668; State v.Brooks (1986), 25 Ohio St. 3d 144.

A presumption that a properly licensed attorney executes his legal duty in an ethical and competent manner must be applied to any claim of ineffective assistance of counsel. State v. Smith (1985), 17 Ohio St. 3d 98; Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In addition, this court must ordinarily accord deference to defense counsel's strategic choices made during trial and cannot examine the strategic choices of counsel through hindsight. Strickland v. Washington, supra, at 689.

As previously stated, the appellant has raised two claims of ineffective assistance of counsel. Each of these two claims of ineffective assistance of counsel shall be independently examined in order to facilitate the instant appeal.

C.APPELLANT'S FIRST CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL: FAILURE TO CALL WITNESSES DURING TRIAL

The appellant's first claim of ineffective assistance of counsel involves the failure of defense counsel to call six known witnesses on behalf of the appellant during the course of trial. Appellant argues that the testimony of these six known witnesses would have substantially and materially corroborated the appellant's innocence.

1. CALLING OF A WITNESS IS NORMALLY A TRIAL STRATEGY

This court has held that the decision to call a witness during the course of trial is a matter of trial tactics and strategy and thus the failure to call a witness will not automatically result in a finding of ineffective assistance of counsel. The basis for this holding involves the general inability of a reviewing court to speculate as to what a potential witness might have stated during trial or how the additional evidence would have affected the jury verdict.

Shepeard also complains that counsel failed to call certain witnesses whose testimony would have supported his innocence. The decision to call a witness is within the realm of trial tactics. State v. Hurt (1984), 20 Ohio App. 3d 310; Griggs, supra. No evidence on the record indicates that this decision prejudiced the defendant. Speculation as to what a witness might have said and how it would have effected the outcome is not a proper function for the reviewing court. See State v. Kolasa (May 19, 1987), Cuyahoga App. No. 511[5]8, unreported." State v. Shepeard (September 14, 1989), Cuyahoga App. No. 55844, unreported, at 6.

2. ON REVIEW: NO SPECULATION AS TO [345]*345TESTIMONY OF UNCALLED WITNESSES

In the case sub judice, however, this court is not required to speculate as to what six additional witnesses might have stated sat trial vis-a-vis the testimony of the six potential witnesses as adduced at the oral hearings held in relation to the appellant's first and second motions for new trial.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
State v. Martin
485 N.E.2d 717 (Ohio Court of Appeals, 1983)
State v. Shepard
468 N.E.2d 380 (Ohio Court of Appeals, 1983)
State v. Hunt
486 N.E.2d 108 (Ohio Court of Appeals, 1984)
State v. Abi-Sarkis
535 N.E.2d 745 (Ohio Court of Appeals, 1988)
State v. Petro
76 N.E.2d 370 (Ohio Supreme Court, 1947)
Vaughn v. Maxwell
209 N.E.2d 164 (Ohio Supreme Court, 1965)
Sarkies v. State, Dept. of Transporation
389 N.E.2d 491 (Ohio Supreme Court, 1979)
State v. Smith
477 N.E.2d 1128 (Ohio Supreme Court, 1985)
State v. Brooks
495 N.E.2d 407 (Ohio Supreme Court, 1986)

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Bluebook (online)
2 Ohio App. Unrep. 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-owens-ohioctapp-1990.