State v. Martin

[Cite as State v. Martin, 2017-Ohio-7431.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27220
:
v. : T.C. NO. 16-CR-977
:
MICHAEL J. MARTIN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the ___1st __ day of _____September_____, 2017.

...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

MICHAEL MILLS, Atty. Reg. No. 0092133, 371 W. First Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant

.............

FROELICH, J.

{¶ 1} Michael J. Martin was found guilty in the Montgomery County Court of

Common Pleas of two counts of murder and several other offenses. He was sentenced
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to an aggregate term of 30 years to life in prison. He appeals from his conviction.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

Procedural History

{¶ 3} On April 6, 2016, Martin was indicted on two counts of felony murder, four

counts of felonious assault, and one count of discharging a firearm at or near a prohibited

premises (over a public road); each of these counts included a firearm specification and

a specification for discharging a firearm from a motor vehicle. Martin was also charged

with improper handling of a firearm in a motor vehicle and having weapons under

disability. The counts of murder and two of the counts of felonious assault related to the

shooting of Gary Lamar Tisdale, Jr.; the two additional counts of felonious assault related

to Elbert Soles and Ellis McMillin.

{¶ 4} Martin waived his right to a jury on the count of having weapons under

disability. In June 2016, he was tried by a jury on all other counts. Martin was found

guilty of two counts of murder, two counts of felonious assault (related to Tisdale), and

discharging a firearm at or near a prohibited premises, along with both specifications for

each of these counts, and of improper handling of a firearm. The jury found him not guilty

of the two additional counts of felonious assault. The court found Martin guilty of having

weapons under disability.

{¶ 5} The two counts of murder and the two counts of felonious assault related to

Tisdale were merged for sentencing, and Martin was sentenced to a mandatory term of

15 years to life. The specifications also merged, and Martin was sentenced to three

years on the firearm specification and to five years on the specification for discharging a

firearm from a motor vehicle. The count of improper handling of a firearm was merged
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with discharge of a firearm at or near a prohibited premises, and Martin was sentenced

to 12 months on this offense, along with a three-year firearm specification. Martin was

sentenced to 36 months for having weapons under disability. All of the sentences and

specifications were to run consecutively. Additionally, Martin was ordered to pay

restitution in the amount of $7,870.93 and court costs.

{¶ 6} Martin appeals from his conviction, raising three assignments of error. We

will address these arguments in an order that facilitates our discussion.

The Weight of the Evidence

{¶ 7} In his third assignment of error, Martin contends that his conviction was

against the manifest weight of the evidence.

{¶ 8} An argument based on the weight of the evidence “challenges the

believability of the evidence and asks which of the competing inferences suggested by

the evidence is more believable or persuasive.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, 972 N.E.2d 517, ¶ 19. When evaluating whether a conviction is against the

manifest weight of the evidence, the appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 9} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of
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particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684

(Aug. 22, 1997). The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14.

A judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

{¶ 10} The State’s evidence was as follows:

{¶ 11} On the evening of March 26, 2016, after spending some time at their aunt’s

house in Kettering, Gary Lamar Tisdale and his brother, Elbert Soles, set out in Tisdale’s

Charger to purchase some “weed” from an acquaintance of Tisdale’s named “Bama” (Ellis

McMillin) However, McMillin did not have what Tisdale and Soles wanted. McMillin got

in the car with Tisdale and Soles to find someone from whom they could make a purchase,

which they did.

{¶ 12} Sometime after 9:00 p.m., when Tisdale, Soles, and McMillin were driving

around together, they drove past a car in which Lisa Busbee was sitting. Busbee and

Tisdale had been in a romantic relationship in the past, and the car in which she sat was

parked in front of a house at which Busbee was staying. Busbee was sitting in the

passenger’s seat of the parked car, and Martin was in the driver’s seat. After passing

the car and recognizing Busbee, Tisdale did a U-turn and pulled up alongside the car in

which Busbee was seated. The cars were then facing in the same direction.

{¶ 13} Tisdale got out of his car and approached Busbee, walking around the

back end of the vehicles. According to the testimony of Soles, McMillin, and Busbee,

Tisdale was in a “happy” mood, was not behaving in a threatening or aggressive manner,

and did not have a gun. These witnesses also testified that Tisdale’s car was not parked
 -5-

so closely to Martin’s as to prevent Martin from exiting. Tisdale spoke with Martin and/or

Busbee through the sun roof of the car, which was open, while standing on the curb; the

windows were closed.

{¶ 14} According to Soles, Tisdale said to Martin, “You can’t stay away from my

girl.” According to McMillin, Tisdale asked Busbee why she was “calling him over there

if she’s in the car with someone else.” According to Busbee, Martin already had a gun

in his lap when Tisdale approached the car and spoke to him. Similarly, Soles testified

that he did not see Martin reach for a gun after they pulled alongside the car.

{¶ 15} Without warning, Martin pointed his gun at Tisdale through the sun roof

and fired. Tisdale was shot in the chest, but he managed to return to his car and to pull

away in the car with Soles and McMillin. It was not immediately clear to Soles (who was

in the front passenger seat) whether Tisdale was hit, but Soles saw a “flash from behind”

and yelled “he’s chasing us.” Tisdale “hit the gas,” but almost immediately started driving

erratically and lost control of the car. Soles told Tisdale to stop the car as it approached

a busy intersection, but Tisdale did not respond. Soles tried to control the vehicle,

without success. A few blocks from Busbee’s residence, the vehicle crashed into a tree

across the street from a fire station, and the airbags deployed.

{¶ 16} Soles jumped out of the car, ran to the driver’s side, partially pulled his

brother from the car, and checked for breathing. Soles testified that Tisdale was still

breathing but could not talk. Firefighters quickly responded from across the street; they

detected no pulse but started CPR. Having observed no signs of life, the fire department

did not transport Tisdale to a hospital.

{¶ 17} After receiving 911 calls and responding to the scene of the crash, police
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officers began to investigate the shooting. They interviewed Soles and McMillin and

sought to determine the location of the shooting. At the scene of the crash, officers

observed that Tisdale’s car had lost a tire and that no guns or ammunition were found on

Tisdale’s body. Between the scene of the crash and the approximate location of the

shooting, officers found one spent shell casing in the street and a freshly damaged curb.

Busbee approached an officer who was collecting evidence in the street near the shooting

and provided more specific information about where and how events had transpired.

That police officer found a broken cell phone near the curb where Martin’s car would have

been parked at the time of the shooting.

{¶ 18} A short time later, Martin called the police and offered to surrender.

Several police officers responded to his home, where he was taken into custody. A

handgun was found on the passenger seat of Martin’s vehicle, and there was a hole in

the passenger side of the front windshield of his car.

{¶ 19} Busbee, age 27, testified that she had known Martin since she was a

teenager; they had been neighbors, and they also had a sexual relationship when she

was 18. Busbee testified that she had no romantic relationship with Martin in March

2016, but that Tisdale and Martin had “had words” in the past. However, according to

Busbee, she saw Martin every morning and every night in early 2016. He provided her

with cigarettes and orange juice when they saw each other and, on the night in question,

he was also going to give her some money to go to laser tag for her daughter’s birthday,

which was that day.

{¶ 20} According to Busbee, Martin and Busbee were parked in front of her

cousin’s house (where she was staying) smoking a “blunt” (marijuana), when Tisdale
 -7-

approached. Busbee testified that Martin removed the gun from his glove box and

locked the car doors while Tisdale was making the U-turn, and that Martin did not load

the gun in her presence at that time. She also testified that Martin was talking on the

phone, telling someone that he did not want to come to a club because he did not want

“to shoot nobody.”

{¶ 21} Busbee testified that, when Tisdale approached the car, Tisdale said “You

still trying to f*** my b****.”1 According to Busbee, Tisdale used a regular voice, and his

tone was not angry, aggressive, or threatening. She also testified that Tisdale did not

try to get in through the sun roof or try to reach for Martin through the roof; Tisdale did try

to open her door, but it was locked, and she had not unlocked it because she “didn’t want

drama.” Busbee said Tisdale did not have a gun in either hand when he was standing

outside the car.

{¶ 22} Busbee testified that Martin’s “gun just went off” almost immediately after

Tisdale’s statement. Busbee stated that Martin had held the gun up above the sun roof.

In the immediate aftermath of the shooting, Busbee did not know if Tisdale had been hurt

or where he had gone, although she saw his car drive away. She was “scared” and ran

into her cousin’s house, taking some of her children with her from the porch. She heard

a second shot when she was on her porch trying to get into the house.

{¶ 23} McMillin testified that he remained in the back seat of Tisdale’s car while

Tisdale approached Busbee in Martin’s car. McMillin testified that the gunshot happened

without warning, that the conversation had been in normal tones prior to that time, and

1
Because our opinions are widely available online, we have chosen to insert asterisks into
certain offensive words that appear in the transcript of this case and in other cases.
 -8-

that Tisdale had not tried to get into Martin’s car. McMillin further stated that, after the

shot was fired, Tisdale walked back to his car “like nothing,” and it was not immediately

apparent that he had been shot. McMillin doubted that Tisdale even realized right away

that he had been shot. McMillin testified that, as they drove away, he (McMillin) dropped

to the floorboard of the car because two additional shots were fired. When the shots

ended and McMillin sat back up, he noticed that Tisdale had “lumped down in the seat”

and realized that Tisdale had been shot. Soles and McMillin then tried to control the car

and to get Tisdale’s foot off the gas pedal as they careened down the street and through

a busy intersection, striking a pole and a tree.

{¶ 24} McMillin testified that Tisdale did not have a gun on the day of the shooting

and that Tisdale “never carried a gun.” McMillin also was not armed at the time of the

shooting. McMillin was not able to identify Martin as the shooter from his observations

at the time of the shooting; he had not paid attention to Martin before the shooting, and

did not have an opportunity to observe him afterward.

{¶ 25} Busbee testified that, when she heard about the car crash and saw police

officers nearby, she went to talk with police officers who were at Second and Kilmer

streets, near her cousin’s house and the scene of the shooting. Police Officer Angela

Woody testified that she was approached by Busbee as she investigated the shooting.

Woody stated that Busbee was very upset and shaking, and that she directed Woody to

where the cars had been parked at the time of the shooting. Woody observed a broken

cell phone on the ground, “right next to where Ms. Busbee indicated that the car had been

parked.” Woody did not find any casings, blood, gun, or other evidence that she

associated with the shooting.
 -9-

{¶ 26} Voicemail messages that Martin had left on Busbee’s phone the morning

of the shooting were introduced into evidence. Martin’s statements in these messages

included the statement: “Would you answer the phone when I call you? F*** that n*****

you’re with. He ain’t doing s*** but leaving you with a wet a**.”

{¶ 27} Keeara,2 age 16, was good friends with one of Busbee’s relatives who

lived at Busbee’s cousin’s house, and she (Keeara) was at the house for several hours

the night of March 26, 2016. Keeara testified that, at a certain point, she was aware that

Busbee was outside with “Mike” (Martin), who was giving Busbee money for her

daughter’s birthday party. Keeara then heard a gunshot, outside and close, and opened

the front door because she knew Busbee was outside. Busbee rushed through the door

with a couple of her children, and Keeara heard another gunshot, which sounded like it

also came from the front of the house. Keeara described Busbee as “paranoid and

upset,” and Busbee told Keeara that Martin had fired a shot out of the sun roof of the car.

{¶ 28} A Dayton Police Department evidence technician, Ronald Christoffers,

testified about the evidence he collected in the case, which included the evidence

collected from Tisdale’s and Martin’s cars, both of which were towed to the police

department. According to Christoffers, two shell casings were recovered: one in the

street a short distance from Busbee’s home and one on the floorboard of Martin’s car. A

semi-automatic pistol with one bullet remaining in the chamber was also found on the

passenger seat of Martin’s car. No bullet holes were found in Tisdale’s vehicle or in the

tire that was lost when the car hit a curb. There was a bullet hole in the passenger side

windshield of Martin’s car, and Christoffers’s examination of the windshield indicated that

2We will avoid the use of the juvenile witness’s full name.
 -10-

the shot was fired from inside the car.

{¶ 29} Martin was the only witness to testify for the defense.

{¶ 30} Martin testified that he went to Busbee’s house at about 9 p.m. on the day

of the shooting. They sat in his car while Busbee smoked a blunt, but Martin did not

partake because of the poor quality of the blunt (it contained marijuana seeds).

According to Martin, he did not have a sexual relationship with Busbee at that time, but

he had in the past. He knew that she had a “Lamar” tattoo (Tisdale’s name) on her chest

and knew of their past relationship, but Martin had never met Tisdale.

{¶ 31} Martin testified that a Charger pulled up alongside his car with its lights off;

he had not seen the car make a U-turn beforehand. The Charger parked within 12 to 18

inches of Martin’s car, such that Martin could not exit his vehicle. The driver of the

Charger then walked around the back of the two vehicles. Martin testified that he saw a

firearm in the man’s hand in the driver’s side mirror as the man walked behind the cars;

he saw the firearm again when the man reached the passenger’s side of his car, and the

man (Tisdale) opened the door about a quarter of an inch. According to Martin, Busbee

was “looking around * * * anxiously,” trying to lock the door, and “screaming and hollering

‘he’s going to kill me.’ ” Martin also testified that he heard Tisdale say the words “b****”

and “kill.”

{¶ 32} Martin testified that he fired at Tisdale through the sun roof with a firearm

that he had beneath the armrest inside his car. Martin believed that he had hit Tisdale,

and he testified that “all aggression ceased” after the shot was fired. Martin stated that

he had been aiming for Tisdale’s shoulder, but hit him in the chest because Tisdale had

reached for the passenger door. Tisdale then walked back to his car. Martin stated that
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he fired another shot into the air after Tisdale walked back to his own car, because he

thought someone else was getting out of Tisdale’s vehicle. Then Tisdale drove away.

{¶ 33} Martin stated that he did not follow Tisdale’s car but that he did pull forward

to a stop sign and, as he tried to turn right with the firearm still in his hand, it “accidental[ly]

discharge[d].” According to Martin, this was the shot that went through the windshield of

his car.

{¶ 34} Martin acknowledged that he had left the voicemail messages on Busbee’s

phone that were played at trial. He explained that he had to talk “rough” to Busbee,

rather than “in an intelligent manner,” to get through to her, and he pointed out that his

messages had prompted her to call him back. However, Martin denied that he had a

phone conversation while sitting in the car with Busbee during which he said that he

“might have to shoot someone” if he went to particular clubs; he said this statement was

part of Busbee’s “vivid imagination.”

{¶ 35} Martin acknowledged that he had not told the police officers who

interviewed him on the night of the shooting that Tisdale had tried to open or had opened

the door to his (Martin’s) car. He explained that he had been “disoriented,” “confused,”

and had “had a bad day.”

{¶ 36} Based on this evidence, the jury found Martin guilty of the murder and

felonious assault of Tisdale, discharge of a firearm on or near a prohibited premises, and

improper handling of a firearm. As described above, several witnesses to the shooting

testified that it was unprovoked and that Tisdale was not armed or acting in an aggressive

manner when he was shot. The testimony of these witnesses, if believed by the jury,

supported Martin’s conviction and undercut his assertion that he had acted in self-
 -12-

defense. Several witnesses also testified that Martin fired additional shots from his car

after Tisdale was shot, a fact which Martin admitted (once in the air and once, he said,

accidentally) in his own testimony. We cannot conclude that the jury clearly lost its way

or created a manifest miscarriage of justice in convicting Martin of the offenses that it did.

{¶ 37} The third assignment of error is overruled.

Jury Instructions

{¶ 38} In his first assignment of error, Martin contends that the jury instructions

were incomplete, inaccurate, and misleading with respect to the “castle doctrine” and the

duty to retreat before acting in self-defense. At oral argument, Martin’s appellate counsel

stated, somewhat more specifically, that the manner or order in which the jury instructions

on self-defense were given created confusion.

{¶ 39} In Ohio, self-defense has three elements: 1) the defendant did

not create the violent situation, 2) the defendant had a bona fide belief that he was in

danger of death or great bodily harm and that the only way to escape was the use of

force, and 3) that the defendant did not violate any duty to retreat. State v. Williford, 49

Ohio St.3d 247, 551 N.E.2d 1279 (1990). The castle doctrine, on which Martin’s defense

relied, relates to the applicability of the duty to retreat.

{¶ 40} The castle doctrine takes its name from the maxim that a person’s home is

his or her “castle.” State v. Waller, 2d Dist. Clark No. 2013-CA-26, 2014-Ohio-237, ¶ 40,

citing State v. Comer, 4th Dist. Gallia No. 10CA15, 2012-Ohio-2261, ¶ 11, and 4

Blackstone, Commentaries on the Laws of England (Rev. Ed.1979) 223, Chapter 16.

The castle doctrine is now codified in R.C. 2901.09(B):

For purposes of any section of the Revised Code that sets forth a criminal
 -13-

offense, a person who lawfully is in that person’s residence has no duty to

retreat before using force in self-defense, defense of another, or defense of

that person’s residence, and a person who lawfully is an occupant of that

person’s vehicle or who lawfully is an occupant in a vehicle owned by an

immediate family member of the person has no duty to retreat before using

force in self-defense or defense of another.

{¶ 41} The castle doctrine does not stand for the proposition – as Martin suggests

-- that he does not have the burden of proof on self-defense. 3 Rather, it sets forth

circumstances in which he is not required to retreat, which relates to only one of the

elements of self-defense. In other words, the castle doctrine creates a rebuttable

presumption in his favor on this one element of self-defense. On the other elements –

that the defendant did not create the situation that gave rise to his use of force, and that

he had reasonable grounds to believe, and an honest belief, that such force as he used

was necessary to protect himself – the defendant still bears the burden of proof. See

State v. Dale, 2d Dist. Champaign No. 2012 CA 20, 2013-Ohio-2229, ¶ 18, citing State v.

Westfall, 9th Dist. Lorain No. 10CA009825, 2011-Ohio-5011, ¶ 19 and State v. Bushner,

9th Dist. Summit No. 26532, 2012-Ohio-5996, ¶ 16.

3
We recognize that the Eighth Appellate District has characterized the castle doctrine as
“creat[ing] a rebuttable presumption” which shifts the burden of proof to the State to show
that “the charged individual was not acting in self-defense.” See, e.g., State v. Kozlosky,
195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097, ¶ 25 (8th Dist.). We do not
agree with the breadth of this statement, as the rebuttable presumption is also dependent
on additional circumstances. For example, if the victim were lawfully in a residence at
the time the defendant used deadly force against him or her, the defendant would not be
entitled to the presumption of self-defense. See State v. Dale, 2d Dist. Champaign No.
2012 CA 20, 2013-Ohio-2229, ¶ 18, citing State v. Lewis, 8th Dist. Cuyahoga No. 97211,
2012-Ohio-3684, ¶ 19.
 -14-

{¶ 42} The trial court’s instructions on self-defense extended over 5 pages of the

transcript. They included, among other things, that 1) the defendant has the burden of

proof on an affirmative defense, including self-defense, by the preponderance of the

evidence; 2) the elements of self-defense and of the duty to retreat; 3) how to determine

whether the defendant (Martin) had reasonable grounds to believe and an honest belief

that he or Busbee was in imminent or immediate danger of death or great bodily harm; 4)

the circumstances in which a duty to retreat no longer applies; and 5) the castle doctrine,

as it applies to a vehicle. These instructions tracked the Ohio Jury Instructions on self-

defense against the danger of death or great bodily harm, the test for reasonableness in

self-defense or defense of another, and the presumptions related to self-defense or

defense of another in a residence or vehicle (the castle doctrine). See 2 Ohio Jury

Instructions 421.19, 421.23, and 421.24. The instructions also made clear that, even if

the defendant fails to establish an affirmative defense, the State must prove all of the

elements of the charged offenses beyond a reasonable doubt.

{¶ 43} After extensive discussions, all of the instructions that Martin requested

related to the castle doctrine and defense of another were given. There were also

extensive discussions about the manner in which the instructions were to be given, and

defense counsel indicated his satisfaction with how these issues were resolved before

the proposed instructions were given. The trial court made a diligent effort to provide

and did provide all of the relevant instructions to the jury. Factual questions existed --

for the jury to decide -- about whether the facts supported the application of the castle

doctrine and/or whether all of the elements of self-defense had been established; these

questions necessitated a complex set of jury instructions, because the relevant
 -15-

instructions were dependent on the jury’s findings with respect to the circumstances

surrounding the shooting. We reject Martin’s argument that the court jury instructions on

self-defense and the castle doctrine were incomplete, inaccurate, or misleading.

Moreover, counsel did not object to the instructions that were given, and we find no plain

error, as we cannot find that the jury instructions on self-defense contained any obvious

defect or affected Martin’s substantial rights.

{¶ 44} The first assignment of error is overruled.

Ineffective Assistance of Counsel

{¶ 45} In his second assignment of error, Martin argues that he was denied the

effective assistance of counsel during the cross-examination of Busbee and his own direct

examination, because counsel did not ask certain questions which might have bolstered

Martin’s claim of self-defense. He also contends that counsel’s handling of the jury

instructions and of certain testimony about someone who allegedly fled from the scene of

the shooting denied him the effective assistance of counsel.

{¶ 46} We review alleged instances of ineffective assistance of trial counsel under

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

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Strickland, 466 U.S. at 688.

{¶ 47} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable
 -16-

probability that, but for the errors, the outcome of the case would have been

different. See id.; Bradley at 142. A debatable decision concerning trial strategy cannot

form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio

St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, __ N.E.3d __,

¶ 38 (2d Dist.).

{¶ 48} With respect to the cross-examination of Busbee, Martin asserts that

counsel failed to ask more direct and specific questions about whether he (Martin) had

acted to defend Busbee, and therefore failed to “fully establish” his self-defense or

defense of another claim. This assertion assumes that Busbee would have answered

the questions in a manner that supported Martin’s theory of the case. However, Busbee

had testified on direct examination that Tisdale was not acting in a threatening manner

and was not armed when he approached the car. Her testimony in the State’s case also

did not support Martin’s testimony that she had been fearful, “screaming,” or “hollering”

when Tisdale approached; she simply stated that she had not unlocked the door because

she did not want “drama” between the two men. Defense counsel could have reasonably

doubted that Busbee would answer direct questions about whether Martin had been

defending her in a manner that would be helpful to the defense, and there is nothing in

the record indicating that such responses were likely. As such, we cannot find that he

acted ineffectively in failing to ask such questions.

{¶ 49} Martin also argues that defense counsel failed to “establish a key point”

during Martin’s direct examination: that he was acting to protect himself or Busbee. We

disagree. Martin’s version of events, as established through his direct examination, was

that Tisdale had approached the car with a gun, that Busbee had expressed fear of
 -17-

Tisdale, that Tisdale had been angry, and that Tisdale had opened the car door. This

testimony supported Martin’s theory of the case: that he had acted in self-defense and/or

defense of Busbee. We cannot find that any additional or formulaic questions by defense

counsel about whether Martin was defending himself or Busbee would have been

answered in a certain fashion, were required, or would have affected the outcome of the

case.

{¶ 50} Martin also contends that a particular section of the transcript during

Soles’s testimony created “some question” about the presence of an “unknown individual”

in Tisdale’s vehicle during the purchase of marijuana, who allegedly “fled” and was “never

questioned by police.” During the cited testimony (Tr. 289), Tisdale’s brother, Soles,

makes reference to a “guy named Bama,” whom Soles had never met before and whose

real name was unknown to him at that time. However, it is clear from the transcript as a

whole that “Bama” was McMillin. McMillin testified at trial that his nickname was “Bama,”

that he had been with Tisdale and Soles prior to the shooting, and that they had

purchased marijuana. There was nothing in Soles’s testimony to suggest in any way that

a person fled from the scene of the shooting and was never identified and questioned by

the police. This record simply does not support any plausible argument that trial counsel

acted ineffectively in failing to identify another witness.

{¶ 51} Finally, Martin contends that trial counsel was ineffective in his handling of

and failure to object to the jury instructions on self-defense. As we discussed under the

first assignment of error, trial counsel was very engaged with the trial court during the

formulation of the jury instructions, and the instructions that were given were proper and

reasonably clear. We find no ineffective assistance related to the jury instructions.
 -18-

{¶ 52} The second assignment of error is overruled.

Conclusion

{¶ 53} The judgment of the trial court will be affirmed.

.............

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew T. French
Michael Mills
Hon. Michael W. Krumholtz