Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-598675-B
Application for Reopening Motion No. 508845
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender By: Erika B. Cunliffe Assistant Public Defender.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Anna Faraglia Assistant County
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
James Alexander has filed a timely application for reopening
pursuant to App.R. 26(B). Alexander is attempting to reopen
the appellate judgment, rendered in State v.
Alexander, 8th Dist. Cuyahoga No. 104281,
2017-Ohio-1445, that affirmed his conviction and sentence for
the offenses of aggravated murder, murder, attempted murder,
aggravated burglary, kidnapping, and felonious assault. We
decline to reopen Alexander's original appeal.
In order to establish a claim of ineffective assistance of
appellate counsel, Alexander is required to establish that
the performance of his appellate counsel was deficient and
the deficiency resulted in prejudice. Strickland v.
Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110
S.Ct. 3258, 111 L.Ed.2d 767 (1990).
In Strickland, the United States Supreme Court held
that a court's scrutiny of an attorney's work must be
highly deferential. The court further stated that it is all
too tempting for a defendant to second-guess his attorney
after conviction and that it would be too easy for a court to
conclude that a specific act or omission was deficient,
especially when examining the matter in hindsight. Thus, 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.
Herein, Alexander has raised four proposed assignments of
error in support of his application for reopening.
Alexander's initial proposed assignment of error is that:
The trial court violated Mr. Alexander's right to due
process and a fair trial by permitting the State to introduce
cell phone record data analysis that he claimed showed Mr.
Alexander's phone was in the vicinity of the shooting at
the time that it occurred.
Alexander, through his proposed assignment of error, argues
that the trial court erred by allowing the testimony of an
FBI agent to be adduced at trial, because the testimony with
regard to the cellular phone analysis was not reliable and
should have been barred under Evid.R. 702.
This court has established that testimony concerning the
location of cellular towers and cell phone records does not
require specialized knowledge, skill, experience, training,
or education and thus constitutes lay opinion testimony.
State v. Wilson, 8th Dist. Cuyahoga No. 104333,
2017-Ohio-2980; State v. Daniel, 8th Dist. Cuyahoga
No. 103258, 2016-Ohio-5231; State v. Dunn, 8th Dist.
Cuyahoga No. 101648, 2015-Ohio-3138.
In addition, the trial court conducted a Daubert
hearing, pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), with regard to the proffered testimony of
the FBI agent. During the course of the Daubert
hearing, it was clearly demonstrated that the testimony of
the FBI agent was reliable and met the Daubert test.
See tr. 143 - 247. Alexander has failed to
establish any prejudice through his first proposed assignment
Alexander's second proposed assignment of error is that:
The trial court violated James Alexander's rights to due
process and a fair trial by allowing the prosecution to taint
the jury by injecting irrelevant but extremely damning
testimony about street gangs and gang affiliation through