[Cite as State v. Williams, 2014-Ohio-199.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98528
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRANCE WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-543577
Application for Reopening
Motion No. 466336
RELEASE DATE: January 17, 2014
-i-
FOR APPELLANT
Terrance Williams, pro se
Inmate No. 624-712
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Brent C. Kirvel
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} In State v. Williams, Cuyahoga C.P. No. CR-543577, the applicant,
Terrance Williams, was found guilty of two counts of aggravated murder, kidnapping,
discharging a firearm on or near a prohibited premises, carrying a concealed weapon, and
having weapons while under a disability. In State v. Williams, 8th Dist. Cuyahoga No.
98528, 2013-Ohio-1181, this court affirmed in part, reversed in part, and remanded for a
limited resentencing hearing for purposes of addressing the multiple aggravated murder
convictions as being allied offenses subject to merger.
{¶2} Williams, pro se, has filed with the clerk of this court an application for
reopening. He asserts that he was denied the effective assistance of appellate counsel for
failure to raise the alleged ineffectiveness of his trial counsel. Specifically, Williams
maintains that his trial counsel should have requested jury instructions on the
lesser-included offense of involuntary manslaughter and that trial counsel should have
retained independent expert witnesses in the areas of trace evidence and DNA analysis.
We deny the application for reopening for the reasons that follow. See App.R. 26(B)(6).
{¶3} Having reviewed the arguments set forth in the application for reopening in
light of the record, Williams has failed to meet his burden to demonstrate that “there is a
genuine issue as to whether the applicant was deprived of the effective assistance of
counsel on appeal.” App.R. 26(B)(5).
{¶4} In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, the
Supreme Court specified the proof required of an applicant as follows:
the two-prong analysis found in Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a
defense request for reopening under App.R. 26(B)(5). [Applicant] must
prove that his counsel were deficient for failing to raise the issues he now
presents, as well as showing that had he presented those claims on appeal,
there was a “reasonable probability” that he would have been successful.
Thus [applicant] bears the burden of establishing that there was a “genuine
issue” as to whether he has a “colorable claim” of ineffective assistance of
counsel on appeal.
Id. at 25.
{¶5} Williams has not established his claim for ineffective assistance of appellate
counsel for failing to question trial counsel’s effectiveness for not requesting an
involuntary manslaughter jury instruction. It cannot be established from the record that
trial counsel was ineffective for not requesting a jury instruction on the lesser included
offense of involuntary manslaughter. The record does not support that instruction and,
even if it did, the decision of whether to request a lesser-included offense jury instruction
is deemed trial strategy. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996)
(“Failure to request instructions on lesser-included offenses is a matter of trial strategy
and does not establish ineffective assistance of counsel”); State v. Thomas, 40 Ohio St.3d
213, 533 N.E.2d 286 (1988).
{¶6} “Even though an offense may be statutorily defined as a lesser included
offense of another, a charge on such lesser included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense.” Thomas, 40 Ohio St.3d at
paragraph two of the syllabus. “[A]n instruction on the lesser included offense of
involuntary manslaughter will be given in a murder trial only when, on the evidence
presented, the jury could reasonably find against the state on the element of
purposefulness and still find for the state on the defendant’s act of killing another.” Id.
at 216.
{¶7} Williams believes that the testimony of the witnesses at trial established the
elements of kidnapping but did not prove he had an intent to kill Darden. He maintains
this establishes that his trial attorney had no strategic reason for failing to request an
involuntary manslaughter instruction.
{¶8} However, several witnesses testified not only that Williams removed Darden
from the house at gunpoint, but they also stated that they saw Williams shoot Darden.
Some witnesses testified that after Darden fell from the first gunshot, Williams dragged
him from the street to the sidewalk and shot him again. Then, Williams sustained a
gunshot wound, causing him to fall on top of Darden. Some witnesses did not see what
happened but heard gunfire. It was within the province of the jury to ultimately determine
whether all, some, or any of the testimony and evidence was credible, however, this
record did not support an instruction on involuntary manslaughter. Thomas, 40 Ohio St.3d
at 217 (finding an involuntary manslaughter instruction was not proper where “under no
reasonable view of the evidence, even in a light most favorable to the accused, could the
jury have found that Thomas did not purposely intend to cause the death of Newhouse.”)
{¶9} Alternatively, it is a recognized trial strategy to forego lesser-included offense
instructions as an election to seek acquittal rather than to invite conviction on a lesser
offense. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980) (even if trial
counsel’s strategy is questionable, tactical decisions do not amount to ineffective
assistance of counsel); see also State v. Jones, 8th Dist. Cuyahoga No. 80737,
2003-Ohio-4397, ¶ 8. Based on the foregoing, appellate counsel was not ineffective for
choosing not to pursue an ineffective assistance of counsel claim on this basis. Jones,
2003-Ohio-4397, ¶ 8 (finding appellate counsel was not ineffective for not asserting
ineffective assistance of trial counsel for not seeking an involuntary manslaughter jury
instruction).
{¶10} Next, Williams contends his appellate counsel should have raised the issue
of trial counsel’s failure to investigate his case. In this regard, Williams refers to the
negative gunshot residue test of his hands and clothing and the DNA test results.
However, the record reflects that counsel fully developed and challenged this evidence,
through cross-examination, at trial.
{¶11} Williams maintains his trial counsel should have hired independent experts
in trace evidence and DNA analysis. However, Williams can only speculate that such
assistance would have changed the outcome in this case. There is nothing in the record to
determine whether any such expert evidence would have been favorable to Williams.
Further, the decision of whether to retain an independent expert is trial strategy and does
not support a claim for ineffective assistance of trial counsel. State v. Nicholas, 66 Ohio
St.3d 431, 436, 613 N.E.2d 225 (1993) (“the failure to call an expert and instead rely on
cross-examination does not constitute ineffective assistance of counsel.”) Appellate
counsel was not ineffective by not raising this meritless claim.
{¶12} Williams also asserts that his appellate counsel was ineffective by not
assigning prosecutorial misconduct as an error. Williams essentially contends that the
state engaged in the subornation of perjury based on Garrick Dalton’s conflicting
statements and testimony. Williams suggests that the state gave Dalton a “deal” in
exchange for his alleged assistance in securing a conviction against him. Dalton was
subject to cross-examination and denied receiving anything in exchange for his testimony.
Appellate counsel addressed the conflicts in Dalton’s testimony and specifically
indicated that his testimony was not reliable in arguing that Williams’s convictions should
be reversed and vacated. There was no evidence that the state permitted or knowingly
elicited perjured testimony from Dalton. Therefore, it was proper for appellate counsel to
address and challenge Dalton’s credibility through errors alleging that Williams’s
convictions resulted from insufficient evidence or were against the manifest weight of the
evidence.
{¶13} Williams has not met the standard for reopening. Accordingly, the
application for reopening is denied.
__________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR