STATE OF OHIO, PLAINTIFF-APPELLEE, v. ELROY F. JAMES, DEFENDANT-APPELLANT.
CASE NO. 1-10-20
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
November 8, 2010
2010-Ohio-5411
Appeal from Allen County Common Pleas Court Trial Court No. CR 2009-0233 Judgment Affirmed
Jerome Doute for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, Elroy James (hereinafter “James“), appeals the Allen County Court of Common Pleas’ judgment of sentence. For the reasons that follow, we affirm.
{¶2} The facts relevant to this appeal are as follows. In June of 2009, James was employed as a corrections officer at Allen Correctional Institution. The prison required everyone entering the prison to enter through a security checkpoint, where they walked through a metal detector and had all bags and coats examined for illegal contraband and other items not permitted inside the prison. The prison had a written code of conduct, which it provided to its employees. Included in this code of conduct was a list of items that employees were permitted to have and what they were not permitted to have inside the institution. For example, employees were not permitted to bring in cellular phones, tobacco products, or any reading materials that did not pertain to their employment, such as newspapers of general circulation.
{¶3} On June 9, 2009, James reported to work at approximately 5:30 a.m. and entered Building “A.” That morning, Corrections Officer Maurice Miller was assigned to the security checkpoint in Building A. Ordinarily, C.O. Miller was not assigned to this position, but the regularly assigned officer was on vacation. James placed his lunch bag on the counter for C.O. Miller to check and then
{¶4} C.O. Miller decided to call his supervisor. As he was picking up the phone to call, James said, “well, if you feel you have to do that, go ahead.” (id. at p. 43.) C.O. Miller called his supervisor and told him that he was needed in “A” Building immediately. While C.O. Miller was on the phone, James reached over the counter towards where C.O. Miller had placed the vacuum sealed package and said, “I don‘t suppose I could get you to give me that back do you – Could you?“, and C.O. Miller told him, “No.” (id. at 44.)
{¶5} Lieutenant Thomas Patrick and Captain Stacie Protsman responded to C.O. Miller‘s call, and he informed them of what he had found. Capt. Protsman asked James if he had clocked in for the day, and when he told her that he had not, she told him to clock in and then have a seat in the entry building. Capt. Protsman left to get a camera, and Lt. Patrick further searched James’ bag. Inside the bag he found an unopened box of Top tobacco and an empty sandwich container. Lt.
{¶6} The lunch bag and all of its contents were given to Allison McCullough, the prison investigator. The following day, the warden directed McCullough to weigh the vacuum sealed package of tobacco and to then open it, which she did. The package of tobacco weighed nearly two pounds. Inside the tobacco, she found another vacuum sealed package of what appeared to be marijuana and a number of blue packets of rolling papers. The suspected marijuana was later sent to the Ohio State Highway Patrol crime lab where testing revealed that the substance was 110 grams of marijuana.
{¶7} On July 16, 2009, James was indicted for one count of illegal conveyance of drugs of abuse onto grounds of a detention facility in violation of
ASSIGNMENT OF ERROR NO. I
OHIO‘S FELONY SENTENCING STATUTES VIOLATE THE RETROACTIVE CLAUSE OF SECTION 28, ARTICLE II OF THE OHIO CONSTITUTION AND EX POST FACTO CLAUSE OF SECTION 10, ARTICLE I OF THE UNITED STATE CONSTITUTION WHEN THE STATUTES ARE APPLIED PURSUANT TO STATE V. FOSTER.
{¶9} In his first assignment of error, James maintains that the Ohio Supreme Court‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, made the punishment for the offense for which he was convicted “greater than that in effect when the crime was enacted by the State Legislature,” rendering it a violation of the Constitution‘s prohibition of ex post facto laws. We disagree.
{¶10} First, the Ohio Supreme Court has held that the application of Foster for offenses committed before that decision was rendered but which were pending direct review did not constitute an ex post facto violation pursuant to
{¶11} Second, “ex post facto” literally means “after the fact.” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 21. Both the United States and Ohio constitutional prohibitions of ex post facto laws apply to only certain types of legislative acts:
“‘1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.‘”
Id. at ¶ 22, quoting Collins v. Youngblood (1990), 497 U.S. 37, 42, 110 S.Ct. 2715, quoting Calder v. Bull (1798), 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648 (opinion of Chase, J.); see, also, Carmell v. Texas (2000), 529 U.S. 513, 521-522, 120 S.Ct. 1620 (emphasis omitted). These prohibitions also constrain “a court‘s power to
{¶12} James committed his offense more than three years after Foster. Therefore, he certainly had fair warning of the possible punishment for illegally conveying drugs of abuse onto the grounds of a detention facility, and the ex post facto clauses of the United States and Ohio Constitutions are wholly inapplicable to the case sub judice. Accordingly, James’ first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. II
THE PERFORMANCE OF THE APPELLANT‘S TRIAL ATTORNEY WAS INEFFECTIVE AND AS A RESULT THEREOF THE APPELLANT‘S RIGHT TO COUNSEL AS IS GUARANTEED BY THE 6TH AMENDMENT OF THE U.S. CONSTITUTION AND BY ART. I, SECTION 10 OF THE OHIO CONSTITUTION WAS NULLIFIED AND THUS DENIED THE APPELLANT A FAIR TRIAL.
{¶13} In his second assignment of error, James maintains that he was denied the effective assistance of trial counsel. Specifically, James contends that counsel rendered ineffective assistance by stipulating that the substance at issue was marijuana and to the chain of custody and procedures utilized in testing the
{¶14} A defendant asserting a claim of ineffective assistance of counsel must establish that (1) counsel‘s performance was deficient or unreasonable under the circumstances and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306, 2001-Ohio-191, 750 N.E.2d 148, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052. Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373, citing Strickland, 466 U.S. at 691. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.
{¶15} In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent
{¶16} As previously noted, James asserts that his trial counsel was ineffective because counsel entered into stipulations regarding the chain of custody of the marijuana, the procedures used to test the marijuana, and that the substance tested was, in fact, marijuana. Ordinarily, trial counsel‘s decision to enter into stipulations is a “tactical decision” that falls “‘within the wide range of reasonable professional assistance.‘” State v. Green (1993), 66 Ohio St.3d 141, 148, 609 N.E.2d 1253, quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
{¶17} Our review of the record reveals that the only stipulation entered into between the State and counsel for James was the chain of custody of the marijuana. More specifically, the parties stipulated that the item at issue that was
{¶18} James has failed to specify any evidence that his counsel should have presented in lieu of this stipulation that would have undermined the chain of custody. Further, this stipulation allowed the defense to portray an air of candor before the jury and prevented additional prosecution witnesses from having to testify in court. Therefore, his claim that counsel was ineffective in entering this stipulation is without merit. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 347.
{¶19} Additionally, his claims that trial counsel rendered ineffective assistance by stipulating to the testing procedures and conclusion that the substance at issue was marijuana are also without merit because those claims are, simply, inaccurate. The record is devoid of any such stipulation. Moreover, the analyst, Lisa Crow, testified at trial about the testing procedures she used in this
{¶20} James next contends that trial counsel was ineffective because counsel did not permit him to testify. The decision whether to call a witness, including a defendant, is generally a matter of trial strategy, and, absent a showing of prejudice, does not deprive a defendant of effective assistance of counsel. State v. Williams (1991), 74 Ohio App.3d 686, 695, 600 N.E.2d 298; see, also, State v. McClellan, 3rd Dist. No. 1-09-21, 2010-Ohio-314, ¶ 58. In addition, when the record does not show an actual request from a defendant to testify and that the
{¶21} Here, James asserts that the record clearly demonstrates that trial counsel‘s strategy was to show that the State could not prove that he “knowingly” conveyed drugs onto the grounds of a detention facility. Thus, James maintains that if he would have testified “[t]here is a more than reasonable possibility the trial attorney‘s strategy would have worked . . . in fact, in a trial, one party wins, the other loses and that‘s a fifty-fifty chance. A fifty percent chance of a different outcome, ie: winning, is a reasonable probability of outcome different from a verdict of guilty.” (Appellant‘s Brief, p.11.) However, James does not provide any explanation of what his testimony would have been and how he was prejudiced by not being permitted to testify.
{¶22} Nevertheless, in reviewing the record, the Pre-Sentence Investigation in this case regarding James’ version of events reported and James’ statements at the sentencing hearing were that he “was set up.” More specifically, James said that he gave a ride to a person he knew, but whose name he would not disclose, that morning when he saw the person walking down the street. He knew the
{¶23} In light of the testimony of the prison officers about what transpired on that day, particularly James’ statements to them and his actions when the vacuum sealed package was discovered, we do not find that James has demonstrated that his version of events provides a reasonable probability that, but for counsel‘s failure to allow James to testify, the result of the proceeding would have been different.
{¶24} Further, the record is devoid of any actual request from James to testify and a rejection of this request by trial counsel. Thus, we must presume that
{¶25} James next asserts that trial counsel rendered ineffective assistance by failing to object to the testimony of McCullough about the recorded telephone calls connecting James to other illegal activities related to smuggling contraband into the prison and the contents of James’ phone records. During the trial, McCullough testified that James’ phone records were subpoenaed. She further testified that a certain inmate‘s calls were being investigated prior to June 9, 2009, because he was suspected of being involved in drug activity and that once she received James’ phone records, she found several of the inmate‘s family and friend‘s phone numbers on James’ records. McCullough also found the numbers of family and friends of four other inmates on James’ phone records. The actual phone records were never introduced or authenticated by the State, and James’ trial counsel did not object to this testimony.2 James now contends that trial counsel should have objected based upon the hearsay rule,
{¶27} Notably, the record in this case shows that the State provided a copy of James’ phone records on August 17, 2009, as part of discovery. Defense counsel filed a motion in limine to prohibit the use of this information, pursuant to
There was no evidence offered to you to prove that, just her statement. And while we‘re on that topic, all those people who were involved supposedly with Elroy, were any of them here to testify to tell you about that, that Elroy was the one who was doing this? That he was involved in smuggling drugs in? That he knew about this?
(Dec. 8, 2009, Tr. at 169-170.)
{¶28} Counsel later attacked this testimony again by pointing out to the jury that search warrants were not issued for James’ home and the local police were not notified of James’ alleged drug dealing activities although there were all these phone calls as McCullough testified, and further attacked this evidence by noting that no one ever attempted to talk to the people who were calling James to ask them why they were making these calls. Thus, counsel chose to use this evidence to attack McCullough‘s credibility and to challenge the credibility of the entire investigation rather than pursue the issue and possibly solidifying the State‘s evidence.
{¶29} Although not successful, we do not find that trial counsel‘s strategy was unreasonable under the circumstances. Furthermore, given all of the other
{¶30} For all of these reasons, the second assignment of error is overruled.
{¶31} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
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