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State v. Harris

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 8, 2018


         Cuyahoga County Court of Common Pleas Case Nos. CR-15-598240-A and CR-15-599227-A Application for Reopening Motion No. 508774

          Michael Harris, pro se FOR APPELLANT

          Michael C. O'Malley, Anthony Thomas Miranda, Jeffrey Schnatter ATTORNEYS FOR APPELLEE


          SEAN C. GALLAGHER, J.

         {¶1} On July 14, 2017, the applicant, Michael Harris, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Harris, 8th Dist. Cuyahoga No. 104833, 2017-Ohio-2985, in which this court affirmed Harris's conviction for murder in State v. Harris, Cuyahoga C.P. No. CR-15-599227-A.[1]Harris now argues that his appellate counsel was ineffective because he should have made better arguments. The state of Ohio filed its brief in opposition to the application on July 21, 2017. For the following reasons, this court denies the application.

         {¶2} The present case concerns the death of a two-year-old boy. Harris was in a relationship with the boy's mother. Harris had spent the night at the mother's home. In the morning, she prepared her children for the day by getting them dressed and feeding them.[2] When the mother was going into the bathroom to take a shower, the two-year-old boy was crying to come in with her. She then asked Harris to get the boy. She remembers Harris grabbing the boy, and she went to take her shower. Several minutes into the shower, she heard a knock at the bathroom door, but did not respond. When she left the bathroom, she saw the boy sitting on the couch. A few moments later, she picked up the boy to put on his coat, but she saw that he was not breathing. Despite calling 911, trying CPR, and taking the boy to the hospital, he died.

         {¶3} The coroner ruled that the boy died as a result of a blunt force impact, like a fist or a foot, to the trunk causing broken ribs, lacerated spleen and liver, and internal hemorrhaging. The coroner further opined that only an adult could have caused these injuries and that the boy would have been incapacitated within minutes of sustaining these severe injuries.

         {¶4} The trial judge found Harris guilty of felony murder under R.C. 2903.02(B), as charged in the indictment, and sentenced him to 15 years to life.

         {¶5} Harris's appellate counsel argued insufficient evidence, manifest weight of the evidence, improper joinder of cases, and improper "other acts" evidence. Harris now complains that his counsel improperly argued insufficient evidence, because he did not focus on the element of purposefully, and improperly argued manifest weight of the evidence by not focusing on the time line of events to show that the mother hit the boy and caused his death.

         {¶6} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

          {¶7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney's work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, "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 at 689.

         {¶8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate's prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every "colorable" issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

         {¶9} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.

         {¶10} Harris's first argument is ill-founded, because purposefully is an element of murder under R.C. 2903.02(A). It is not an element under R.C. 2903.02(B), which requires the mens rea of knowingly. Appellate counsel in the exercise of professional ...

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