Stаte of Ohio, Plaintiff-Appellee, v. Dawntwai M. Hubbard, Defendant-Appellant.
No. 11AP-945 (C.P.C. No. 10CR-09-5694)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 16, 2014
2014-Ohio-122
CONNOR, J.; BROWN and KLATT, JJ., concur.
(REGULAR CALENDAR)
Rendered on January 16, 2014
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Dawntwai M. Hubbard, pro se.
ON APPLICATION FOR REOPENING
CONNOR, J.
{¶ 1} Defendant-appellant, Dawntwai M. Hubbard (“defendant“), has filed an application, pursuant to
{¶ 2} On September 27, 2010, defendant was indicted on charges of aggravated murder, attempted murder, murder, and felonious assault, all with firearm specifications. The charges arose from events which occurred near defendant‘s house on
{¶ 3} Defendant testified that, after the cement block came through his window, he retrieved the gun which hе had placed behind the mantel earlier in the day and walked out onto his porch. Defendant pointed his gun “[t]owards the group” of people standing in front of Bronaugh‘s house and fired five shots in rapid succession. (Tr. 224.) A neighbor who witnessed the event stated that defendant directed his shots “[d]own the street into [thе] group,” and did not point “the gun down” or “up in the sky.” (Tr. 226-27, 246, 307-08.) Defendant testified that he had fired his gun “down towards the ground” in the direction of the abandoned house next door. (Tr. 1202-03.) Defendant stated that he did not intend to kill or harm anyone when he shot his gun. One of the bullets from defendant‘s gun hit Teddy McGrapth in the back, causing his death. Another bullet from defendant‘s gun hit Candace Keys in the foot and caused her injury. Both Keys and McGrapth had been standing with the group near Bronaugh‘s front porch. The jury found defendant guilty of attempted murder, felonious assault, and felony murder.
{¶ 4} In his direct appeal, defendant, through counsel, raised ten assignments of error. As relеvant herein, defendant asserted that (1) the trial court denied him due process of law when the court failed to instruct the jury on the lesser-included offenses of involuntary manslaughter and reckless homicide, and (2) that the State violated his constitutional right to confront the witnesses against him. In our June 27, 2013 decision in Hubbard, this court overruled defendant‘s first nine assignments of error, but overruled in part and sustained in part the tenth assignment of error regarding defendant‘s sentence. Accordingly, we affirmed the judgment of the Franklin County
{¶ 5} Defendant filed the application for reopening on September 26, 2013. Defendant also filed an affidavit with his application, averring that the outcome of his direct appeal would have been different if his appellate attorney had presented the issues presented in the application to reopen. Defendant‘s application sets forth the following three assignments of error in support of his claim that appellate counsel was ineffective on direct appeal:
[I.] THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CROSS EXAMINE HIS ACCUSER.
[II.] VIOLATION OF HUBBARD‘S 6TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
[III.] HUBBARD WAS DENIED DUE PROCESS OF LAW IN VIOLATION OF HIS 5TH AND 14TH AMENDMENT CONSTITUTIONAL RIGHTS WHEN THE TRIAL COURT FAILS TO INSTRUCT THE JURY ON THE LESSER INCLUDED CHARGES OF INVOLUNTARY MANSLAUGHTER AND RECKLESS HOMICIDE, AND THE EVIDENCE PRESENTED AT TRIAL SUGGESTED THAT DEFENDANT WAS ENTITLED TO THOSE INSTRUCTIONS.
{¶ 6}
{¶ 7} Our decision in Hubbard was journalized on June 27, 2013. Defendant filed his application for reopening on September 26, 2013, 92 days after the journalization of our decision in Hubbard.1
{¶ 8} Moreover, even if we were to find that defendant‘s untimely application was filed with good cause, we would find that the application fails on the merits as well. An application for reopening must set forth “[o]ne or more assignments of error or argumеnts in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel‘s deficient representation.”
{¶ 9} To prevail on an application to reopen, defendant must make “a colorable claim” of ineffective assistance of aрpellate counsel under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). See State v. Lee, 10th Dist. No. 06AP-226, 2007-Ohio-1594, ¶ 2, citing State v. Sanders, 75 Ohio St.3d 607 (1996). Under Strickland, defendant must demonstrate the following: (1) counsel was deficient in failing to raise the issues defendant now presents; and (2) defendant had a reasonable probability of success if the issue had been presented on appeal. Id., citing State v. Timmons, 10th Dist. No. 04AP-840, 2005-Ohio-3991.
{¶ 10} An appellate attorney has wide latitude and the discretion to decide which issues and arguments will prove most useful on appeal. Furthermore, appellate counsel
Confrontation Clause
{¶ 11} Defendant‘s first proposed assignment of error asserts that he was dеnied his Sixth Amendment right to cross-examine his accuser. Defendant asserts that “the admission of any evidence that defendant had shot Candice Keys was testimonial in nature and deprived Hubbard of his right to confront a witness against him when Keys was not called on as a witness to present this evidence.” (Application for Reopening, 2.)
{¶ 12} Defendant raised this same argument in his direct appeal. See Hubbard at ¶ 28-31. There, we noted that the Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial, unless the witness is unavailable to testify and the defendant had a prior oppоrtunity to cross-examine the witness. Id. at ¶ 29, quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In Hubbard, defendant asserted that Keys’ hearsay statements were allowed into the record via testimony from other witnesses. We noted that defendant did “not provide a citation to the transcript to support this assertion, [did] not indicate what hearsay statements were аllowed into the record, and fail[ed] to allege that such statements were testimonial.” Id. at ¶ 30. Similarly, in his application for reopening, defendant fails to identify any specific testimonial statements from Keys which were allowed into the record. Accordingly, defendant‘s contentions regarding the Confrontation Clause have been addressed and rejected.
Lesser-Included Offenses
{¶ 13} Defendant‘s remaining proposed assignments of error concern the trial court‘s failure to instruct the jury on the lesser-included offenses of reckless homicide and involuntary manslaughter. Defendant asserts that his appellate counsel rendered ineffective assistance by (1) failing to assign trial counsel‘s ineffectiveness as an assignment of error, (2) failing to present an argument to support the fifth assignment of error in Hubbard, and (3) failing to assign the trial court‘s failure to instruct the jury on reckless homicide and involuntary manslaughter as an assignment of errоr.
{¶ 14} Defendant asserts that his trial counsel rendered ineffective assistance by failing to request jury instructions on the lesser-included offenses of involuntary
{¶ 15} In light of defendant‘s testimony indicating that he fired warning shots tоward the ground and did not intend to harm anyone, defense counsel could have been pursuing a valid “all or nothing” strategy, and hoping to receive an acquittal on the felony murder charge. Defendant fails to allege that his trial counsel‘s decision not to request a jury instruction on the lesser-included оffenses was anything other than trial strategy. Accordingly, defendant has not presented a colorable claim that his appellate counsel was ineffective in failing to assign trial counsel‘s ineffectiveness as an assignment of error.
{¶ 16} Defendant next asserts that his appellate counsel rendered ineffective assistance by failing to brief an argument to support the fifth assignment of error in Hubbard, which addressed the trial court‘s failure to instruct the jury on the lesser-included offenses of reckless homicide and involuntary manslaughter. Defendant‘s appellate counsel failed to brief any argument to support the fifth assignment of error, in violation of
{¶ 17} In Hubbard, we thoroughly addressed defendant‘s fifth assignment of error as it related to reckless homiсide. We concluded that, although reckless homicide was a lesser-included offense of felony murder predicated on felonious assault, the trial court did not commit plain error by failing to instruct the jury on reckless homicide. We
{¶ 18} As we addressed defendant‘s fifth assignment of error regarding reckless homicide, defendant was not prejudiced by his counsel‘s failure to brief an argument regarding that lesser-included offense. Additionally, for the reasons that follow, defendant has failed to demonstrate a reasonable probability of success on an appeal of the court‘s failure to instruct the jury on the lesser-included offense of involuntary manslaughter.
{¶ 19} An offense is a lesser-included offense of another where: (1) the offense carries a lesser penalty; (2) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (3) some element of the greater offense is not required to prove commission of the lesser offense. State v. Deem, 40 Ohio St.3d 205, 209 (1988). The jury instruction on the lesser-included offense must be given when sufficient evidence is presented which would allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser-included offense. State v. Shane, 63 Ohio St.3d 630, 632-33 (1992).
{¶ 20}
{¶ 21} Defendant does not identify what predicate felony or misdemeanor he believes would support the involuntary manslaughter instructiоn. Defendant simply asserts that “[t]he jurors could have found Hubbard guilty of involuntary manslaughter if they had any doubt about Hubbard‘s purpose to kill but were reluctant to acquit.” (Application for Reopening, 9.) As defendant has not identified what predicate offense he believes the involuntary manslaughter instruction should hаve been based on, we cannot determine whether involuntary manslaughter would be a lesser-included offense of felony murder in this case. Moreover, as the only other non-murder felony defendant was charged with was felonious assault, the jury could not have found defendant guilty of involuntary manslaughter prеdicated on felonious assault without also finding him guilty of felony murder predicated on felonious assault. See State v. Meadows, 9th Dist. No. 26549, 2013-Ohio-4271, ¶ 11.
{¶ 22} In conclusion, because defendant‘s proposed assignments of error are not well-taken, he has failed to meet his burden to demonstrate that there is a genuine issue as to whether he was deprived the effective assistance of appellate counsel. As such, we deny defendant‘s
Application for reopening denied.
BROWN and KLATT, JJ., concur.
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