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State v. Alexander

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES ALEXANDER DEFENDANT-APPELLANT

         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 Prosecutor.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} 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.

         {¶2} 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).

         {¶3} 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. Strickland

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 of error.

         {¶8} 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 ...

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