STATE OF OHIO, PLAINTIFF-APPELLEE vs. REECO DENNIS, DEFENDANT-APPELLANT
No. 104742
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 6, 2018
[Cite as State v. Dennis, 2018-Ohio-2723.]
SEAN C. GALLAGHER, J.
JOURNAL ENTRY AND OPINION; Case No. CR-16-604113-A; Application for Reopening; Motion No. 510216
Reeco Dennis, pro se
Inmate No. A680469
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} On September 8, 2017, the applicant, Reeco Dennis, pursuant to
{¶2} On March 12, 1996, the victim, a 17-year-old woman, was walking to a store to get milk for her baby, when the assailant pointed a gun at her and told her to go into a nearby field. Once there, the assailant, holding the gun to the young woman’s head, ordered her to pull her pants down and then raped her. After he left, the young woman reported the rape and went to а hospital. She did not know the assailant and never identified him. However, the hospital took her clothes and prepared a rape kit.
{¶3} In February 2016, the state matched the DNA profile in two samples from the victim’s pants to Dennis. The waistband sample identified Dennis as the contributor to a near certainty. The sample from the pant cuff was not as definitive but matched Dennis as a potential contributor.
{¶4} The grand jury indicted Dennis within the statute of limitations. A jury convicted him of rape and kidnapping, and the judge sentenced him to a tоtal of 19 years.
{¶6} Now, Dennis maintains that his appellate counsel was ineffective. He asserts that counsel should have argued that Dennis was denied his right to a fair and impartial jury because two jurors had been victims of sexual assault and should not have bеen allowed to serve on his jury. Alternatively, he argues that his appellate counsel should have also argued that his trial counsel was ineffective for not objecting to these two jurors.
{¶7} In order to establish a claim of ineffective assistance of aрpellate 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.
{¶8} 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
{¶9} 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 wеaker 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 reasonablе 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.
{¶10} 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 reasonablе 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
{¶11} During voir dire, when the judge asked Juror No. 132 if she or someone she knew had been a victim of crime, she replied:
Had a great aunt who was raped probably 30 years ago. I work with some clients that have been victims and perpetrators of sexual abuse. And I had an incident, we didn’t press any charges, but when I was 13 with a neighbor.
The Court: The aunt, was that a stranger or somebody known to her?
Juror No. 13: They knew her. It was gang related.
The Court: Okay. Thank you. Is there anything else in your background, * * * , we should know?
Juror No. 13: No. (Tr. 78-79.)
{¶12} The judge at that time did not аsk Juror No. 13 if she could be fair and impartial. Subsequently, when the prosecutor asked if there was anything else, Juror No. 13 answered:
I had my car broken into and my best friend’s car was broken into.
Mr. Henry: Did they find the people responsible?
Juror No. 13: No.
.
Mr. Henry: And how do you feel about that?
Juror No. 13: Well, with mine, I didn’t call the police, but I should have. That was my fault. With her, it was in the Toledо area.
Mr. Henry: Can you [be] fair and impartial despite what happened to you?
Juror No. 13: Yes. (Tr. 118.)
{¶13} When the judge continued the voir dire with Juror No. 14,3 the following exchange occurred:
The Court: And then the sexual assault question.
Juror No. 14: That was myself, and that was about 40 years ago.
The Court: Okay. Did they catch the perpetrator?
Juror No. 14: It was somebody I knew, and I never pushed it.
The Court: Okay. Same question: Are you ablе to sit and judge Mr. Dennis fairly and impartially.
Juror No. 14: I think so. (Tr. 82-83.)
{¶14} Subsequently, while the prosecutor was questioning Juror No. 14, she revealed that her daughter had some trouble with her neighbors, who tried to break into her apartment, and that her parents’ house was broken into and had property stolеn. The prosecutor then asked:
Mr. Henry: And despite all these things happening to you, can you be fair and impartial to both the State and Mr. Dennis?
Juror No. 14: I can. (Tr. 119.)
{¶15} When the defense counsel continued voir dire, he had the following exchange with Juror No. 14:
Mr. Heffernan: * * * You mentioned that you’ve had a difficult experience in the past.
Juror No. 14: Yes.
Mr. Heffernan: And if you served on this jury, do you believe that that would color your opinion of Mr. Dennis as he sits here today?
Juror No. 14: No.
Mr. Heffernan: Not at all?
Juror No. 14: No, because he’s not the person.
Mr. Heffernan: Right.
Juror No. 14: They did not — you know, I mean, he’s innocent until proven guilty so —.
Mr. Heffernan: Right. As he sits here today, as you mentioned, he sits here an innocent man, correct?
Juror No. 14: Yes.
Mr. Heffernan: Unless and until a jury says otherwise, right?
Juror No. 14: Right. (Tr. 164-165.)
{¶16} Defense counsel then asked the entire jury whether there was anyone who felt that “based on their own personal experiences they just can’t give Mr. Dennis a fair shake just by virtuе of the fact that he’s sitting in the defendant’s chair?” (Tr. 165.) There were no hands showing a potential juror who felt that he or she could not be fair because of their personal experiences.
{¶17} When the judge asked for challenges for cause and for perеmptory challenges, the prosecutor asked for removal of Juror No. 10, because her son had been a defendant in a sexual assault case and felt that the son had not been fairly treated. The court granted the removal for cause. Defense counsel asked for a similar strike for cause, and the judge granted the request and noted the appropriateness of the challenge. The state exercised three of its four peremptory challenges, and the defense only exercised two.
{¶18} Dеnnis argues that because rape is one of the most emotionally devastating crimes, if such victims are seated on a jury, there is a substantial risk that they will identify emotionally with the victim and against the accused. State v. Zerla, 10th Dist. Franklin No. 91AP-562, 1992 Ohio App. LEXIS 1280 (Mar. 17, 1992). Because of the likelihood of this possibility, the courts should presume such a bias. United States ex rel. Hunley v. Godinez, 758 F.Supp. 522 (N.D.Ill. 1992). To ensure an impartial jury, doubts regarding bias must be resolved against the juror. United States v. Gonzalez, 214 F.3d 1109 (9th Cir.2000). The impaneling of a biased
{¶19} Dennis argues that because Juror Nos. 13 and 14 had been victims of sexual assault, they were necessarily biased against him and deprived him of his right to an impartial jury. The trial court erred in not removing them for cause. Trial counsel prejudiced him for not trying to remove them for cause or exercising peremptory challenges to remove them. Appellate counsel was deficient in failing to argue these points. Accordingly, he concludes that the application should be granted.
{¶20}
{¶21} In State v. Wallace, 8th Dist. Cuyahoga No. 105123, 2017-Ohio-7322, this court distinguished Zerla. In Zerla, the prospective juror still suffered emotional trauma from the sexual assault, but in Wallace the prospective juror showed no indication that she was still suffering emotional trauma from the incident. Therefore, this court overruled the assignment of error that trial counsel was ineffective for failing to exercise a peremptory challenge and allowing
{¶22} Under Ohio law, error in the denial of a challenge of a juror for cause cannot be grounds for reversal when the defendant did not exhaust his peremptory challenges. In the present case, trial counsel exercised only two of his four peremptory challenges. This presented another hurdle for appellate counsel, in order to argue error in not striking for cause, he would probably have to argue for a change in Ohio law that peremptory chаllenges need not be exhausted in order to raise error in failing to excuse a juror for cause. Appellate counsel is not deficient for failing to anticipate developments in the law or failing to argue such an issue. State v. Williams, 74 Ohio App.3d 686, 600 N.E.2d 298 (8th Dist.1991).
{¶23} Moreover, defense counsel did not challenge either juror for cause, which waives any alleged error in regard to those jurors. Thus, appellate counsel would have had to argue this issue through the lens of plain error, which is taken with the utmost caution and only to prevent a manifest misсarriage of justice. In the instant case, the DNA evidence could be viewed as dispositive. Both Dennis and the woman agreed that neither knew the other, and there was no evidence to indicate how Dennis’s DNA got on the woman’s pants except through the rape incident. Therefore, establishing a manifest miscarriage of justice or showing prejudice for purposes of ineffective assistance of counsel is problematic.
{¶24} Because the jurors affirmed that they could be impartial despite what hapрened to them, because the incidents were in the long past, because there was no evidence of continuing trauma, because appellate counsel would have probably had to argue for a change in the law, because he would have had to argue through the lens of plain error, and because the DNA evidence was the decisive evidence in the case making it difficult to prove a manifest miscarriage
{¶25} Accordingly, this court denies the application to reopen.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
LARRY A. JONES, SR., J., CONCUR