STATE OF OHIO v. RICKY C. GRIFFITH
No. 97366
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASE DATE: January 29, 2013
2013-Ohio-256
Cuyahoga County Common Pleas Court Case No. CR-549701 Application for Reopening Motion No. 458184
John P. Parker
988 East 185th Street
Cleveland, OH 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{¶1} On August 31, 2012, the applicant, Ricky Griffith, pursuant to
{¶2} In order to establish a claim оf 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.
{¶3} 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 аfter 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.
{¶4} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Cоurt 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 centrаl 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 profеssional 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
{¶5} 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 prejudicе: 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 сonfidence 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 dеficiencies.
{¶6} The evidence at Griffith‘s trial showed that when the victim, Caresse Cortez, returned to her car from having been inside a post office, a pickup truck was parked next to it, and there was a new paint mark on the side of her car. While Cortez was trying to rub out the mark, Griffith returned to his pickup truck and told Cortez to “move out of the way, bitch.” She replied that he had hit her car, and she was trying to rub out the mark. He stated that he did not hit her car and called her a “spic.” Cortez then asked for Griffith‘s insurance information, which he refused to give her. He then shoved her out of the way to open his door. Cortez bounсed off her car and back into his door, which caused the door to close on Griffith‘s finger. Griffith screamed in pain and said, “now I‘m going to hit your car dumb spic bitch.” He slammed his truck door against Cortez‘s car and dеnted it. Realizing that Griffith was leaving the scene, Cortez moved behind and just to the side of the truck to take a photograph of his license plate. Griffith told
{¶7} Griffith‘s first argument — that his trial counsel was ineffective because she told the jury that she would call witnesses but then did not — is unpersuasive because of res judicata and lack of prejudice. Griffith‘s appellаte counsel made the same argument, and this court thoroughly examined the issue and concluded there was no error.
{¶8} Griffith‘s next arguments are that the prosecutor engaged in misconduct by vouching for Cortez‘s credibility and that defense counsel was ineffective for failing to object to the misconduct. During closing argument, the prosecutor reviewed the facts and stated that Cortez‘s testimony showed that Griffith was аngry, yelling racial slurs, pushing, and slamming the door into Cortez‘s car. He told the jury that, “You‘ll make the determination if she‘s credible or not. I submit to you that she absolutely is. She has things to back that credibility up.” (Tr. 325-326.) The prosecutоr then referred to the police officer‘s testimony that he saw the damage to Cortez‘s car and to Cortez‘s photographs of her car as corroboration of Cortez‘s credibility. Griffith‘s counsеl did not object. This is the only instance of misconduct Griffith argues.
{¶9} A prosecutor may not express a personal opinion as to the credibility of a witness. Nevertheless, the test for prosecutorial misconduct is whether the remarks were improper, and if so, whether they prejudicially affected the accused‘s substantial rights.
{¶10} In the present case, the prosecutor‘s remark is isolated and is sandwiched between an affirmation that the jury is the determiner of credibility and an analysis of the еvidence showing corroboration. It is difficult to conclude that such a remark misled the jury or resulted in prejudice. Accordingly, this court will not second-guess appellate counsel‘s reasonable professional judgment in declining to argue this point. Furthermore, if the direct argument on prosecutorial misconduct was unpersuasive, then the indirect argument through the lens of ineffective assistance of counsel would also be unpersuasive.
{¶11} Griffith next claims that his trial counsel was ineffective for failing to request a jury instruction on the inferior degree of aggravated menacing. However, in State v. Griffie, 74 Ohio St.3d 332, 1996-Ohio-71, 658 N.E.2d 764, the Supreme Court of Ohio affirmed the denial of an
{¶12} Griffith also argues that his sentence was contrary to law, because it was too harsh. He did not harm Cortez, and Griffith asserts that similar offenders received lesser sentences than he reсeived. Trial counsel probably preserved this argument by asking for probation, noting that the man who had raped Griffith and his brother as children had gotten three years, and stating that in many other felonious assault сases the victim was hurt.
{¶13} In order to prevail on a disproportionately harsh sentence argument, the appellant must clearly and convincingly establish that his sentence is inconsistent with sentences оf similar defendants in similar cases. Felonious assault under
{¶14} Finally, Griffith argues cumulative error. Because his other assignments of error are not well-founded, this argument is necessarily unpersuasive. Griffith has not established a genuine issue as to whether he was deprived of the effective assistance of appellate counsel.
{¶15} Accordingly, this court denies the application to reopen.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR