State v. Telego, 104 N.E.3d 190

Three-month-old presented with acute and older subdural hemorrhages, retinal hemorrhages, and required craniectomy; treating physicians testified findings were consistent with abusive head trauma/shaking.
Parents brought child to ER after baby became unresponsive; appellant (Devin Telego) performed CPR and later testified he did not injure the child and demonstrated a play "airplane" maneuver used with the infant.
Appellant was indicted on three alternative child-endangering/child-abuse counts; jury convicted on one count (reckless child endangering elevated to a felony due to serious physical harm) and deadlocked on two greater-degree child-abuse counts.
On appeal Telego raised (1) prosecutorial misconduct for cross-examining him about alleged photographs (never offered) and misstating a witness’s testimony, and (2) ineffective assistance for failing to retain a medical expert and failing to seek sanctions when the State’s last witness did not appear until the next morning.
Trial court had admonished the prosecutor when the State’s final witness was delayed and limited the State to one hour with that witness the next day; defense did not move to exclude the witness.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Telego)	Held
Prosecutorial misconduct for implying existence of photos and misstating witness testimony	Prosecutor had a good-faith basis to cross-examine and did not need to introduce a photo to ask a conditional impeachment question; any error harmless	Question improperly implied evidence (photos) that were never admitted and mischaracterized witness testimony, undermining credibility; plain error	No plain error; prosecutor’s conditional question had a reasonable basis given witness testimony and did not deprive Telego of a fair trial
Ineffective assistance for not retaining medical expert	Defense strategy to rely on cross-examining treating physicians was reasonable; calling a defense expert is tactical and speculative	Counsel should have requested funds for and called a medical expert to rebut State experts	No deficient performance or prejudice; choosing to cross-examine treating physicians was reasonable trial strategy
Ineffective assistance for not seeking sanction/exclusion when State’s final witness delayed	Court’s reprimand and limitation of testimony addressed the issue; excluding the witness likely would not have been granted and could have disadvantaged defense	Counsel should have moved to preclude the witness for State’s scheduling failure	No deficient performance or prejudice; defense conceded witness would testify and extra time arguably aided defense preparation

State v. Ballew, 76 Ohio St.3d 244 (trial objection preserves issues; failure to object waives all but plain error)
State v. Landrum, 53 Ohio St.3d 107 (plain-error rule applied with caution)
State v. Gillard, 40 Ohio St.3d 226 (cross-examiner may ask questions based on good-faith belief in predicate facts)
State v. McKelton, 148 Ohio St.3d 261 (prosecutorial misconduct test: improper conduct and prejudice to substantial rights)
Strickland v. Washington, 466 U.S. 668 (two-part ineffective-assistance standard: deficiency and prejudice)
State v. Bradley, 42 Ohio St.3d 136 (Ohio framing of Strickland test)
State v. Hunter, 131 Ohio St.3d 67 (failure to call defense expert may be reasonable strategy; speculative to assume benefit)
State v. Hartman, 93 Ohio St.3d 274 (same principle regarding experts and cross-examination)
State v. Carter, 72 Ohio St.3d 545 (deference to trial strategy; prejudice requirement for ineffective assistance)