State v. Clark, 2017 Ohio 178

Moses Clark, pro se, filed an App.R. 26(B) application to reopen his direct appeal that affirmed convictions for three counts of rape and three counts of kidnapping.
Clark contends appellate counsel was ineffective for failing to properly raise a Sixth Amendment Confrontation Clause claim regarding admission of statements by the deceased victim and narrative medical-record testimony.
At trial, Officer Gray testified to statements the victim made at the scene; a nurse testified to narrative portions of the victim’s medical records. The victim had died before trial.
On direct appeal this court already upheld admission of the officer’s testimony as excited utterances and non-testimonial under Davis, and upheld the nurse’s narrative under Evid.R. 803(4).
The court denied reopening on two independent grounds: (1) the issues Clark now raises were previously decided on direct appeal (res judicata), and (2) Clark failed to attach the required sworn statement under App.R. 26(B)(2)(d).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not properly raising a Confrontation Clause claim	Clark (applicant) argues counsel failed to challenge admission of deceased victim’s statements and medical-record narrative under Crawford/Davis	Appellate court maintains prior appellate counsel raised and the court considered these evidentiary/confrontation issues on direct appeal	Denied — res judicata bars relitigation; Clark failed to show prejudice and did not supply required sworn statement for reopening
Admissibility of victim’s statements to officer	State contends statements were admissible as excited utterances and non-testimonial (primary purpose was emergency aid)	Clark argues statements were testimonial and admission violated Crawford	Court affirmed: statements were excited utterances and not testimonial under Davis; admission did not violate Confrontation Clause
Admissibility of narrative from medical records	State contends nurse’s narrative was for treatment purposes and admissible under Evid.R. 803(4)	Clark argues narrative was testimonial and thus violated Confrontation Clause	Court affirmed: nurse’s testimony was treatment-related hearsay exception; admission did not violate Sixth Amendment
Procedural compliance with App.R. 26(B)	N/A	Clark failed to attach a sworn statement of the basis for the ineffective-assistance claim as required	Application denied for noncompliance with App.R. 26(B)(2)(d)

Strickland v. Washington, 466 U.S. 688 (1984) (standard for ineffective assistance: deficient performance and prejudice)
State v. Bradley, 42 Ohio St.3d 136 (1989) (Ohio application of Strickland)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause and testimonial statements)
Davis v. Washington, 547 U.S. 813 (2006) (distinguishing testimonial statements where primary purpose is emergency aid)
Ashe v. Swenson, 397 U.S. 436 (1970) (doctrine barring relitigation of issues decided on prior appeal)
State v. Doles, 75 Ohio St.3d 604 (1996) (App.R. 26(B) requirement for sworn statement)
State v. Lechner, 72 Ohio St.3d 374 (1995) (procedural requirements for reopening under App.R. 26(B))