State v. KentState v. Kent
JUDGMENT: APPLICATION GRANTED IN PART
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
CHRISTINE T. MCMONAGLE, J.:
{¶ 1} John Kent has filed a timely application for reopening pursuant to
{¶ 3} “In State v. Reed [supra, at 458] we held that the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under
{¶ 5} In Strickland v. Washington, supra, the United States Supreme Court also stated that a court‘s scrutiny of an attorney‘s work must be deferential. The court further stated that it is too tempting for an appellant to second-guess his attorney after conviction and appeal and that it would be all too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Accordingly, “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.” Id. at 689. Finally, the United States Supreme Court has upheld the appellate attorney‘s discretion to decide which issues are the most fruitful arguments and the importance of winnowing out weaker arguments on appeal and focusing on one central issue or at most a few key issues. Jones v. Barnes, supra.
{¶ 7} “Appellate counsel was ineffective under the Sixth and Fourteenth Amendments of the federal Constitution for failure to raise ineffective assistance of trial counsel for failure to object to incomplete and inaccurate jury instructions on accomplice liability in accordance with Ohio law.”
{¶ 8} Kent, through his first proposed assignment of error, argues that trial counsel was ineffective by failing to object to the trial court‘s jury instruction with regard to accomplice testimony. Specifically, Kent argues that the trial court did not properly instruct the jury with regard to accomplice testimony, since the complete jury instruction as found at §405.41 of the Ohio Jury Instructions was not read to the jury.
{¶ 9} Contrary to Kent‘s argument, a trial court is not required to instruct the jury in the precise language requested nor is the trial court required to provide the jury with a verbatim recitation of a requested jury instruction, such as any instruction contained within the Ohio Jury Instructions. State v. Scott (1986), 26 Ohio St.3d 92, 497 N.E.2d 55; State v. Brady (1988), 48 Ohio App.3d 41, 548 N.E.2d 278. The trial court‘s jury instruction need only communicate to the jury, the legal principles and law pertinent to the case. State v. Sneed (1992), 63 Ohio St.3d 3, 584 N.E.2d 1160; State v. Nelson (1973), 36 Ohio St.2d 79, 303 N.E.2d 865.
{¶ 10}
{¶ 11} “The testimony of an accomplice does not become inadmissable because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution. It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.”
{¶ 12} The trial court provided the following instruction to the jury, with regard to the testimony of an accomplice:
{¶ 13} “Testimony of an accomplice. The testimony of an accomplice does not become inadmissable because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity or a witness may affect his or her credibility and make that testimony subject to grave suspicions, and require that it be weighed with great caution.
{¶ 15} The trial court‘s jury instruction, with regard to the testimony of Kent‘s accomplice, clearly complied with the requirements of
{¶ 16} Kent‘s second proposed assignment of error is that:
{¶ 17} “Appellate counsel was ineffective under the Sixth and Fourteenth Amendments of the federal Constitution when he failed to raise constitutional ineffectiveness on trial counsel for failure to object to improper jury instructions concerning the charge of Aggravated Murder and the proper verdict if State failed to prove “all” the elements of Aggravated Murder.”
{¶ 18} Kent, through his second proposed assignment of error, argues that trial counsel was ineffective by failing to object to the trial court‘s jury instruction with regard to the offense of aggravated murder. Specifically, Kent argues that the trial court‘s use of the word “all,” instead of “each and every,” with regard to proof beyond a reasonable doubt and the elements
{¶ 19} The trial court instructed the jury, with regard to the offense of aggravated murder, as follows:
{¶ 20} “Ladies and gentlemen, if you find that the State failed to prove beyond a reasonable doubt all the essential elements of aggravated murder, then your verdict must be not guilty of that offense. In that event, or if you are unable to agree unanimously, you will continue your deliberations . . .” Tr. 1320.
{¶ 21} As stated previously, the trial court is not required to provide the jury with a verbatim recitation of any requested jury instruction, but need only communicate to the jury the legal principles and law pertinent to a specific charged offense. State v. Scott, supra; State v. Brady, supra; State v. Sneed, supra; State v. Nelson, supra. The trial court‘s use of the term “all,” instead of “each and every,” when instructing the jury with regard to the elements that must be proved beyond a reasonable doubt, did not circumvent the legal principles and law pertinent to the charged offense of aggravated robbery. It is clear that the trial court instructed the jury that Kent must be acquitted of the offense of aggravated murder, unless the state produced evidence, beyond a reasonable doubt, that established each element of the
{¶ 22} Kent‘s third proposed assignment of error is that:
{¶ 23} “Appellate counsel was constitutionally ineffective when he failed to raise the issue of defective indictment and jury instructions because the indictment and jury instructions failed to include the mens rea element necessary for Aggravated Robbery in counts one, two and three. Sixth and Fourteenth Amendments of the federal Constitution.”
{¶ 24} Kent through his third assignment of error, argues that counts one, two, and three of the indictment, which include or deal with the offense of aggravated robbery, failed to contain the element of mens rea of recklessness. Specifically, Kent argues that the trial court should have instructed the jury with regard to the mens rea of recklessness as mandated by the decision rendered by the Supreme Court of Ohio in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917.
{¶ 25} In Colon, the court established that a defendant‘s due process rights are violated in a prosecution for robbery, when the indictment omits the mens rea of recklessness and the jury is not instructed with regard to the
{¶ 26} We, however, find that there exists a genuine issue as whether Kent was deprived of effective assistance of counsel on appeal, as a result of his conviction for the offense of aggravated robbery under
{¶ 27} Kent‘s fourth proposed assignment of error is that:
{¶ 28} “Appellate counsel was constitutionally ineffective under the Sixth and Fourteenth Amendments of the federal Constitution when he failed to raise the cumulative effect of the errors contained in propositions of law I, II and III and their cumulative effect on the fundamental fairness of the trial received by the appellant.”
{¶ 29} Kent, through his fourth proposed assignment of error, argues that he was prejudiced by cumulative error that resulted from multiple defective jury instructions and a defective indictment. Based upon our review of first, second and third proposed assignments of error, we find no cumulative effect that improperly effected the fundamental fairness of the trial received by Kent. Our finding of a potential error, as associated with proposed assignment of error three, constitutes a solitary error at best. Cf. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858; State v. Garner, 74 Ohio St.3d 46, 1995-Ohio-168, 656 N.E.2d 623; State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256.
{¶ 30} Kent‘s fifth proposed assignment of error is that:
{¶ 32} Kent, through his fifth proposed assignment of error, argues that appellate counsel was ineffective by failing to argue on appeal that the trial court erred by failing to grant his motion to waive court costs. Court costs may be collected from an indigent defendant. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164. In addition, appellate review of a trial court‘s denial of a motion to waive court costs is based upon an abuse-of-discretion standard. Id. Herein, Kent has failed to demonstrate that the trial court abused its discretion in denying his motion to waive court costs. State v. Luna, Cuyahoga App. No. 91271, 2009-Ohio-2712; State v. Nicholson, Cuyahoga App. No. 88889, 2007-Ohio-5429. Kent has failed to establish that there exists a genuine issue as to whether his appellate counsel was ineffective through his fifth proposed assignment of error.
{¶ 33} Based upon our disposition of Kent‘s third proposed assignment of error, we grant Kent‘s application for reopening in part and reopen Kent‘s original appeal as filed in Cuyahoga App. No. 90795. See
{¶ 34} Application for reopening granted in part.
CHRISTINE T. MCMONAGLE, JUDGE
MARY EILEEN KILBANE, P.J., and
JAMES J. SWEENEY, J., CONCUR