[Cite as State v. Carter, 2017-Ohio-8847.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27717
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NATHANIEL CARTER, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 06 1821
DECISION AND JOURNAL ENTRY
Dated: December 6, 2017
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Nathaniel Carter Jr., appeals from his convictions in the
Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On July 7, 2014, the Summit County Grand Jury indicted Carter on the following
six counts: (I) aggravated murder in violation of R.C. 2903.01(A), a special felony, with firearm
specifications pursuant to R.C. 2941.145 and R.C. 2941.146; (II) murder in violation of R.C.
2903.02(B), a special felony, with firearm specifications pursuant to R.C. 2941.145 and R.C.
2941.146; (III) felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with
firearm specifications pursuant to R.C. 2941.145 and R.C. 2941.146; (IV) felonious assault in
violation of R.C. 2903.11(A)(2), a second-degree felony, with firearm specifications pursuant to
R.C. 2941.145 and R.C. 2941.146; (V) having weapons while under disability in violation of
R.C. 2923.13(A)(3), a third-degree felony; and (VI) tampering with evidence in violation of R.C.
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2921.12(A)(1), a third-degree felony. The indictment arose from a “drive-by” shooting that
killed 18-year-old Donald Carter, Jr.1 (“the victim”) on the night of June 11, 2014. Carter
pleaded not guilty to the charges contained in the indictment and the matter proceeded to a jury
trial.
{¶3} At trial, 21 witnesses testified on behalf of the State. At the close of the State’s
case-in-chief, Carter made a Crim.R. 29 motion for judgment of acquittal, which the trial court
summarily denied. The defense then rested without calling any witnesses. The jury deliberated
and ultimately found Carter not guilty of aggravated murder, but guilty of the five remaining
offenses and specifications thereto. The trial court subsequently sentenced Carter according to
law.
{¶4} On March 11, 2015, Carter filed a motion for delayed appeal, which this Court
granted. See State v. Carter, 9th Dist. Summit No. 27717 (Mar. 31, 2015). Carter’s appellate
counsel thereafter filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967),
stating that counsel had reviewed the trial record and concluded that there were no viable issues
to pursue on appeal. Carter’s appellate counsel also moved to withdraw as counsel of record.
This Court then issued a magistrate’s order affording Carter an opportunity to raise arguments
after review of the Anders brief. Carter subsequently filed a motion seeking appointment of new
appellate counsel, as well as a motion to dismiss his counsel’s Anders brief, wherein he raised
arguments that he wished to pursue on direct appeal. After reviewing the trial record, this Court
determined that there was at least one arguable issue for appeal. See State v. Carter, 9th Dist.
Summit No. 27717 (Sep. 7, 2016). Accordingly, this Court granted Carter’s appellate counsel’s
motion to withdraw and appointed new appellate counsel to brief any discernable issues. Id.
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Carter and the victim are not related.
3
{¶5} Carter’s new appellate counsel thereafter filed a timely merit brief presenting four
assignments of error for our review. To facilitate our analysis, we elect to address Carter’s
assignments of error out of order. For ease of analysis, we also elect to address Carter’s second
and third assignments of error together.
II.
Assignment of Error IV
The verdict was against the manifest weight of evidence. The State of Ohio
failed to establish beyond a reasonable doubt when viewed by the manifest
weight of the evidence that Nathaniel Carter was involved in the murder of
Donald Carter. The court erred, therefore, in failing to grant Mr. Carter’s
Rule 29 motion for acquittal.
{¶6} In his fourth assignment of error, Carter contends that his convictions are both
unsupported by sufficient evidence and against the manifest weight of the evidence. We
disagree.
{¶7} “‘We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.’” State v. Smith, 9th Dist. Summit No. 27389,
2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634,
¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we
review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review,
our “function * * * is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
After such an examination and taking the evidence in the light most favorable to the prosecution,
we must decide whether “any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Id. Although we conduct de novo review when
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considering a sufficiency of the evidence challenge, “we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775 , ¶ 33.
{¶8} A sufficiency challenge is legally distinct from a manifest weight
challenge. Thompkins at 387. When applying the manifest weight standard, we are required to
consider the whole record, “weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses 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. Otten, 33 Ohio App.3d 339, 340
(9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds
“in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785, ¶ 32,
citing Otten at 340, where the evidence “weighs heavily against the conviction,” Thompkins at
387.
{¶9} This matter implicates Carter’s convictions for murder, felonious assault, having
weapons while under disability, and tampering with evidence, along with the attendant firearm
specifications thereto. On appeal, Carter does not dispute the underlying elements of these
offenses. Rather, Carter contends that the State failed to meet its burden of production solely
with respect to the issue of identity. As such, we will confine our analysis to this issue.
{¶10} “‘It is well settled that in order to support a conviction, the evidence must
establish beyond a reasonable doubt the identity of the defendant as the person who actually
committed the crime at issue.’” State v. Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶
13, quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014–Ohio–1226, ¶ 27, citing State
v. Collins, 8th Dist. Cuyahoga No. 98350, 2013–Ohio–488, ¶ 19 and State v. Lawwill, 12th Dist.
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Butler No. CA2007–01–014, 2008–Ohio–3592, ¶ 11. “[D]irect or circumstantial evidence is
sufficient to establish the identity of the accused as the person who committed the crime.”
Collins at ¶ 19, citing Lawwill at ¶ 11.
{¶11} At trial, four of the State’s 21 witnesses positively identified Carter as the “drive-
by” shooter on the night in question. First, Tracy W., the mother of the victim’s best friend,
Dana W., testified that she was hosting a birthday party for her adult nephew on the night in
question. Tracy W. testified that while she was in the backyard of a neighboring building
preparing to cut the birthday cake, her son, Dana W., daughter, Taresa W., niece, Dominique W.,
and the victim were all hanging out on the stoop area of her apartment building on the corner of
Marcy Street and Cole Avenue. Tracy W. testified that as she was about to cut the cake, she
heard several gunshots. She stated that upon hearing the gunshots, she “looked and [she] seen a
red truck go by and [she] seen the shots coming from the truck.” She then testified that she
immediately called 9-1-1 after observing that the victim had been shot. Tracy W. stated that
when the police arrived at the scene, she informed them that Nathaniel Carter, Jr. was the
shooter. Tracy W. proceeded to identify Carter in court as the person who shot and killed the
victim on the night in question.
{¶12} Second, Taresa Lynn W. testified that on the night in question, she was sitting in
front of her mother’s building on Cole Avenue with her brother, Dana W., her cousin,
Dominique W., and the victim. Taresa W. also testified that she was aware that Dana W. and
Carter had a contentious relationship, including a violent confrontation that occurred just two
days prior to the day in question. She further testified that at some point while the four of them
were conversing, Sheldon C., one of Carter’s “really good friends,” drove down the street and
looked at them. According to Taresa W.’s trial testimony, Dana W. then stated, “I bet you any
6
amount of money [Sheldon C. is] about to call [Carter] and tell him I’m out here.” She testified
that approximately 15-20 minutes later, she saw a red truck driving down the street in their
direction. Taresa W. testified that she was fearful and began to run around the apartment
building, at which time she heard gunshots. She testified that “[w]hen I turned as I was running
around trying to look and see, that’s when I see [Carter] ride by shooting.” Taresa W.
subsequently identified Carter in court as the shooter on the night in question.
{¶13} Third, Theresa T. testified that she was visiting with family at her daughter’s
house on Andrus Street on the night in question. Evidence presented at trial demonstrated that
the crime scene is located just down the street and is visible from the front of Theresa T.’s
daughter’s house. Theresa T. testified that at some point that evening, she saw Dana W., who
was standing on Cole Avenue near Marcy Street, fall to the ground and begin crawling. Theresa
T. also testified that she then saw bullets ricochet on the sidewalk near Dana W.’s foot or ankle.
Theresa T. testified that as she was in the process of moving her family members to safety, she
saw a red SUV turn off of Cole Avenue onto Andrus Street and drive right past her location.
Theresa T. testified that as the red SUV drove by, the driver “did a mean mug at us,” which she
clarified was a mean and threatening expression. Theresa T. subsequently identified Carter in
court as the man driving the red SUV who made the “mean expression” at her.
{¶14} Lastly, Cheryl D., Theresa T.’s sister, testified that she was staying at her niece’s
house on the corner of Andrus Street and Cole Avenue on the night in question. Cheryl D.
testified that she did not know Dana W. or the victim. Cheryl D. further testified that she was
sitting on the front porch of her niece’s house with her sister that evening while “[t]he kids were
outside playing in the front yard.” She stated that from her vantage point, she could see the
corner of Marcy Street and Cole Avenue “very well.” She testified that at some point that
7
evening she “heard gunshots. About six of them went off, pop, pop, pop, pop, pop[.]” Cheryl D.
explained that she recognized the sounds as gunfire and immediately ordered the children to
“[g]et in the house and lay on the floor.” She testified that when she looked up, she saw a red
truck turn right onto Andrus Street and drive past her. Cheryl D. testified that the driver of the
red truck “turned around and looked at me and him and me made direct contact. I turned around
and I said, ‘That’s the shooter,’ like that.” Cheryl D. stated that the driver “had a real mean look
on his face. He looked me straight in my eyes. He was real mean and, you know, had a real
mean frown on his face and – and I looked. I said, ‘That’s the shooter.’” Cheryl D. explained
that she concluded that the man in the red truck was the shooter “‘[c]ause of the expression on
his face and at the time that he made the turn [onto Andrus Street] the shots stopped. They
stopped. And everything came to a stop, and he was the only thing moving at that time.” She
then identified Carter in court as the driver of the red truck on the night in question.
{¶15} Viewing this evidence in a light most favorable to the State, we determine that
any rational trier of fact could have found beyond a reasonable doubt that Carter was the
individual who committed the charged offenses on the night in question. This evidence, if
believed, demonstrates that while he was driving a red vehicle, Carter committed a “drive-by”
shooting, which killed the victim on the night of June 11, 2014. Accordingly, we conclude that
the State met its burden of production at trial.
{¶16} Turning to his manifest weight argument, Carter contends that his convictions are
against the manifest weight of the evidence because Dana W. and members of Dana W.’s family
provided biased and unreliable testimony on the State’s behalf. However, this Court has
routinely held that “[c]redibility determinations are primarily within the province of the trier of
fact.” State v. Just, 9th Dist. Wayne No. 12CA0002, 2012–Ohio–4094, ¶ 42, citing State v.
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Violett, 9th Dist. Medina No. 11CA0106–M, 2012–Ohio–2685, ¶ 11. “The fact-finder ‘is free to
believe all, part, or none of the testimony of each witness.’” Id., quoting State v. Cross, 9th Dist.
Summit No. 25487, 2011–Ohio–3250, ¶ 35. Here, the jury reviewed all of the evidence and
assessed the credibility of each witness. The jury apparently accepted the testimony of the
State’s witnesses which, if believed, supports the conclusion that Carter shot and killed the
victim on the night in question. After reviewing the record, we cannot conclude that the jury lost
its way and committed a manifest miscarriage of justice in convicting Carter of the charged
offenses, especially considering the fact that two disinterested witnesses, Theresa T. and Cheryl
D., buttressed the W. family’s testimony that Carter was the individual responsible for the fatal
“drive-by” shooting.
{¶17} Carter’s fourth assignment of error is overruled.
Assignment of Error I
Nathaniel Carter, Jr.’s constitutional and statutory right to a speedy trial
was violated when the trial date was unreasonably continued outside the
statutory timeframe. It is ineffective representation by defense counsel to fail
to move the court to dismiss on speedy trial issues to further protect the issue
on appeal. This Court can review as failure to raise this issue is plain error
which Mr. Carter has not waived.
{¶18} In his first assignment of error, Carter argues that (1) his right to a speedy trial
was violated when the trial date was unreasonably continued outside the statutory timeframe, and
(2) his trial counsel provided ineffective assistance by failing to move for a dismissal of the
indictment due to a purported speedy trial violation. We disagree on both points.
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A. Right to A Speedy Trial
{¶19} At the outset, we note that the argument portion of Carter’s appellate brief solely
addresses his speedy trial rights under R.C. 2945.71 et seq. Accordingly, we confine our
analysis to Carter’s argument concerning his statutory right to a speedy trial. See State v.
Detamore, 9th Dist. Wayne No. 15AP0026, 2016-Ohio-4682, ¶ 6 (noting that since appellant
failed to preserve or otherwise develop an argument with respect to his constitutional right to a
speedy trial, this Court would only address whether his statutory right to a speedy trial was
violated).
{¶20} In this case, a review of the record shows that Carter did not file a motion to
discharge the case based on a speedy trial violation. Therefore, Carter has forfeited all but plain
error. Plain error may only be invoked where the following three elements exist:
First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the
error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an error
must be an “obvious” defect in the trial proceedings. * * * Third, the error must
have affected “substantial rights” * * * [and] affected the outcome of the trial.
(Internal citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Nonetheless, plain
error “is to be taken with the utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph
three of the syllabus.
{¶21} R.C. 2945.71(C)(2) provides that “[a] person against whom a charge of felony is
pending * * * [s]hall be brought to trial within two hundred seventy days after the person’s
arrest.” “[E]ach day during which the accused is held in jail in lieu of bail on the pending charge
shall be counted as three days.” R.C. 2945.71(E). Thus, if the accused is held in jail in lieu of
bail, the time within which the trial must be held is 90 days. See id. When calculating speedy
trial time, the day of arrest is not to be counted. State v. Friedhof, 9th Dist. Medina No. 2505-M,
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1996 Ohio App. LEXIS 3018, *8 (July 10, 1996), citing State v. Steiner, 71 Ohio App.3d 249,
250-251 (9th Dist.1991); See also Crim.R. 45(A). “Upon motion made at or prior to the
commencement of trial, a person charged with an offense shall be discharged if he is not brought
to trial within the time required by [R.C. 2945.71].” R.C. 2945.73(B).
{¶22} However, in addition to the time limits set forth in R.C. 2945.71, R.C. 2945.72
provides for the tolling of the speedy trial statute due to continuances of criminal trial dates.
That statute states in relevant part, “[t]he time within an accused must be brought to trial * * *
may be extended only by the following * * * (H) [t]he period of any continuance granted on the
accused’s own motion, and the period of any reasonable continuance granted other than upon
the accused’s own motion[.]” (Emphasis added.)
{¶23} Here, Carter was arrested on June 11, 2014. Thus, the speedy trial clock began
running in this matter on June 12, 2014. See Friedhof at *8, citing Steiner at 250-251.
Assuming the time within which Carter must have been brought to trial was not tolled by any of
his own motions, that time would have expired on September 10, 2014. However, at the July 16,
2014 pretrial conference, defense counsel informed the trial court that he had filed a motion for
discovery, thus tolling the speedy trial clock. See State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-
7040, ¶ 26, citing R.C. 2945.72(E). Subsequently, at the pretrial conference held on July 30,
2014, defense counsel informed the trial court that despite the fact he was waiting on discovery
from the prosecutor, Carter was not willing to waive his speedy trial rights, but would “accept”
September 15, 2014, as a trial date. Although there is no indication that Carter objected to this
trial date, he is bound by his counsel’s acceptance even if it was without his consent. See State v.
McBreen, 54 Ohio St.2d 315 (1978) syllabus.
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{¶24} Nonetheless, in a journal entry dated August 2, 2014, the trial court vacated the
trial date “due to the Court’s unavailability” and ordered a new trial date set for October 27,
2014. In that same order, the trial court noted that Carter “decline[d] to waive any irregularities
in timeliness as to his right to a speedy trial.”
{¶25} Although the trial court stated the trial was continued “due to the Court’s
unavailability,” Carter does not argue on appeal that such a continuance was unreasonable in this
matter, see R.C. 2945.72(H), and we decline to do so on his behalf. See App.R. 16(A)(7).
However, a review of the transcript from a status hearing held August 20, 2014, shows that the
trial court informed the parties that the trial court had a capital case scheduled to commence on
September 3, 2014, and continue for four to six weeks thereafter. During that same status
hearing, the prosecutor informed the trial court that another homicide case was scheduled to
commence on September 15, 2014. The prosecutor stated that case was “older” than the present
case and that the defendant in that case was in custody.
{¶26} Therefore, we cannot say the trial court committed plain error by not discharging
Carter’s case based on a speedy trial violation.
B. Ineffective Assistance of Counsel
{¶27} “The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22, citing
State v. Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. “On the issue of
counsel’s ineffectiveness, [Carter, as the Appellant,] has the burden of proof because in Ohio, a
properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006–
Ohio–6679, ¶ 62. To prove ineffective assistance of counsel, Carter must establish that (1) his
trial counsel’s performance was deficient, and (2) “the deficient performance prejudiced the
12
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, an
appellant “must prove that there exists a reasonable probability that, were it not for counsel’s
[deficient performance], the result of the trial would have been different.” State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph three of the syllabus. This Court need not address both prongs
of Strickland if an appellant fails to prove either prong. State v. Ray, 9th Dist. Summit No.
22459, 2005–Ohio–4941, ¶ 10.
{¶28} However, we conclude that Carter has failed to meet his burden of demonstrating
that he was prejudiced by his trial counsel’s failure to file a motion to dismiss on the basis of a
speedy trial violation. First, as discussed above, Carter does not argue that it was unreasonable
for the trial court to continue his trial due to the trial court’s unavailability. Nonetheless, a
review of the record shows the trial court was scheduled to commence multiple trials which
would conflict with Carter’s September 15, 2014 trial date. Those cases included a four to six
week capital case and a homicide case that had been pending longer than the present case.
Second, while Carter asserts in his brief that “[n]o motions were filed, and no motion for
discovery was filed tolling the speedy trial time[,]” such a claim is belied by the pretrial
transcripts. Although a review of the record does not show when or if a motion for discovery
was ever filed with the clerk of the Summit County Court of Common Pleas, a review of the
transcript from the July 16, 2014 pretrial conference reflects that Carter’s trial counsel
represented to the trial court that he had made a motion for discovery. Indeed, the prosecutor
subsequently referenced the defense’s discovery motion at the August 20, 2014 status conference
wherein the speedy trial issue was discussed at length. Nonetheless, the record is devoid of any
information as to what date the motion was made or when the State complied with the discovery
request. Absent these dates, this Court is unable to fully analyze whether Carter was brought to
13
trial within the timeframe set forth in R.C. 2945.71(C)(2) and R.C. 2945.71(E), as we cannot
discern the tolling period applicable in this matter.
{¶29} Therefore, we determine that Carter has failed to meet his burden of
demonstrating actual prejudice from his trial counsel’s failure to file a motion to dismiss on the
basis of a speedy trial violation.
{¶30} Carter’s first assignment of error is overruled.
Assignment of Error II
It was improper to allow the testimony of Lt. Jerry Hughes who testified
without objection that Nathaniel in his interview was “acting like he did it”
even though he “[wasn’t] admitting that he did it.” It is ineffective assistance
to fail to object to this testimony giving subjective opinion as to what
Nathaniel actually meant by his behavior.
Assignment of Error III
Nathaniel Carter was rendered ineffective assistance of counsel through trial
defense by counsel’s failure to meet the standard of professional conduct
required in various parts of the trial.
{¶31} In his second and third assignments of error, Carter argues that he received
ineffective assistance of trial counsel. Carter advances several arguments in support of this
contention. Specifically, Carter asserts that his trial counsel was ineffective by not objecting to
purportedly improper opinion testimony, by failing to impeach a State’s witness, by failing to
cross-examine some of the State’s witnesses on the issue of the shooter’s identity, and by failing
to present evidence supporting an argument made during his opening statement. We will address
each argument in turn.
{¶32} “‘The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel.’” Liu, 2008-Ohio-6793, at ¶ 22, citing Banks, 2002-Ohio-4858, at ¶ 16.
“On the issue of counsel’s ineffectiveness, [Carter, as the Appellant,] has the burden of proof
14
because in Ohio, a properly licensed attorney is presumed competent.” Gondor, 112 Ohio St.3d
377, 2006–Ohio–6679, at ¶ 62. To prove ineffective assistance of counsel, Carter must establish
that (1) his trial counsel’s performance was deficient, and (2) “the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. To demonstrate prejudice, an appellant
must prove that “there exists a reasonable probability that, were it not for counsel’s [deficient
performance], the result of the trial would have been different.” Bradley, 42 Ohio St.3d at
paragraph three of the syllabus. This Court need not address both prongs of Strickland if an
appellant fails to prove either prong. Ray, 2005–Ohio–4941, ¶ 10.
{¶33} In his second assignment of error, Carter argues that his trial counsel was
ineffective by not objecting to Lieutenant Jerry Hughes’ allegedly improper opinion testimony.
Namely, Carter maintains that his trial counsel should have objected when Lt. Hughes testified
that Carter acted like he was guilty during his police interrogation, despite the fact that Carter
never confessed to the charged offenses. Additionally, Carter argues that his trial counsel should
have objected when Lt. Hughes testified that Carter appeared to be “wrestling or coming to grips
with” his actions, noting that Carter appeared to realize that his “life is over” “if [he] get[s]
convicted of this murder[.]” Carter asserts that apart from being prejudicial, Lt. Hughes’ opinion
testimony was speculative, improper for a lay witness, and the product of several lines of leading
questions from the prosecutor.
{¶34} However, “this Court has consistently held that ‘trial counsel’s failure to make
objections is within the realm of trial tactics and does not establish ineffective assistance of
counsel.’” State v. Bradford, 9th Dist. Summit No. 22441, 2005–Ohio–5804, ¶ 27, quoting State
v. Taylor, 9th Dist. Lorain No. 01CA007945, 2002–Ohio–6992, ¶ 76. Viewing Lt. Hughes’
purportedly improper testimony in the aggregate, we conclude that Carter has failed to meet his
15
burden of demonstrating that such testimony was actually prejudicial to his defense. Assuming
without deciding that Lt. Hughes’ testimony was improper, we cannot say that there was a
reasonable probability that the results of Carter’s trial would have been different but for trial
counsel’s failure to object to this testimony, especially considering the fact that four different
witnesses identified Carter as the “drive-by” shooter on the night in question. See State v.
Russell, 10th Dist. Franklin No. 03AP-666, 2004-Ohio-2501, ¶ 52 (finding that even if trial
counsel’s failure to object to opinion testimony was not justified on tactical grounds, appellant
was not prejudiced since “there is no reasonable probability that, but for the failure to object, the
results of the proceeding would have been different.”). Accordingly, we determine that Carter’s
second assignment of error is without merit.
{¶35} Turning to his third assignment of error, Carter contends that his trial counsel was
ineffective by failing to cross-examine Dana W. on his prior criminal convictions and his plea
deal2 with the State in exchange for his testimony in the present case. Moreover, Carter argues
that his trial counsel was ineffective by not cross-examining Tracy W., Taresa Lynn W., and
Dominique W., or otherwise objecting to or seeking a curative instruction in response to their
purportedly improper testimony. Specifically, Carter argues that his trial counsel should have
objected when Tracy W. and Taresa Lynn W. identified him as the shooter, since neither witness
testified to seeing him driving the red truck or firing a gun on the night in question. Moreover,
Carter argues that much of the W. family’s respective testimony was either hearsay or the
product of leading questions from the prosecutor.
2
The record reflects that Dana W. was criminally charged for allegedly shooting a
firearm at Carter two days before the night at issue in this matter. The record further reflects that
the State offered Dana W. a plea deal of six years’ incarceration in exchange for his testimony
against Carter, but that Dana W. rejected this offer. Although Dana W. testified against Carter at
trial, he testified that he rejected the State’s plea offer because he was innocent of the charged
offenses.
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{¶36} Several courts have held that “decisions regarding cross-examination are within
trial counsel’s discretion and generally do not form the basis for a claim of ineffective assistance
of counsel.” State v. Harris, 10th Dist. Franklin Nos. 09AP–578, 09AP-579, 2010–Ohio–1688, ¶
28, citing State v. Flors, 38 Ohio App.3d 133, 139 (8th Dist.1987) and State v. Woods, 4th Dist.
Ross No. 09CA3090, 2009-Ohio-6169, ¶ 25. Moreover, “[i]t is well settled that ‘trial counsel’s
failure to make objections are “within the realm of trial tactics” and do not establish ineffective
assistance of counsel.’” State v. Cureton, 9th Dist. Medina No. 01CA3219-M, 2002-Ohio-5547,
¶ 55, quoting State v. McCroskey, 9th Dist. Wayne No. 96CA0026, 1997 Ohio App. LEXIS
1276, *12 (Apr. 2, 1997), quoting State v. Hunt, 20 Ohio App.3d 310, 311 (9th Dist.1984).
{¶37} Additionally, as noted earlier, Carter has failed to demonstrate a reasonable
probability that the result of his trial would have been different absent the alleged deficiencies by
his trial counsel. While shedding light on Dana W.’s prior criminal history and plea deal with
the State may have caused the jury to doubt his credibility, there was testimony from four other
witnesses positively identifying Carter as the “drive-by” shooter who killed the victim on the
night in question. See State v. Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, ¶ 45
(holding that appellant failed to show he was prejudiced by trial counsel’s failure to impeach the
victim’s credibility through evidence of a prior conviction since independent evidence existed
tending to establish the appellant’s guilt). Moreover, assuming without deciding that Tracy W.’s
and Taresa Lynn W.’s testimony identifying Carter as the shooter was either improper or the
product of improper questioning, we cannot ignore the fact that two disinterested witnesses,
Theresa T. and Cheryl D., also identified Carter at trial as the “drive-by” shooter. Accordingly,
based on the foregoing, we conclude that Carter has failed to establish that he was prejudiced by
his trial counsel’s performance.
17
{¶38} Finally, Carter briefly argues that his trial counsel was ineffective by advancing a
theory of the case during his opening statement without presenting an expert witness at trial to
buttress that theory. Specifically, Carter argues that his trial counsel was ineffective for arguing
during his opening statement that Dana W. was the individual responsible for shooting and
killing the victim without further developing this theory either on cross-examination of the
medical examiner or through direct examination of an expert witness. However, on this point,
we note that Carter has only made a very general, undeveloped argument in his brief. As this
Court has repeatedly recognized, “[s]peculation regarding the prejudicial effects of counsel’s
performance will not establish ineffective assistance of counsel.” State v. Buzek, 9th Dist.
Medina No. 14CA0011–M, 2015–Ohio–4416, ¶ 7, quoting State v. Zupancic, 9th Dist. Wayne
No. 12CA0065, 2013–Ohio–3072, ¶ 4. Carter has made no attempt to explain why his trial
counsel’s failure to buttress his opening argument with expert testimony is tantamount to
ineffective legal representation and this Court declines to construct such an argument on Carter’s
behalf. See id.; Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 Ohio App. LEXIS
2028, *22 (May 6, 1998) (“If an argument exists that can support this assignment of error, it is
not this [C]ourt’s duty to root it out.”). Accordingly, we likewise conclude that Carter’s third
assignment of error is without merit.
{¶39} Carter’s second and third assignments of error are overruled.
III.
{¶40} With all four of Carter’s assignments of error having been overruled, the
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
18
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.