STATE OF OHIO, Plaintiff-Appellee, v. WENDELL PROFFITT, JR., Defendant-Appellant.
CASE NOS. CA2016-07-134, CA2016-07-135
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/3/2017
2017-Ohio-1236
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case Nos. 16CRB01150 and 16CRB01151
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Wendell Proffitt, appeals his convictions in the Hamilton Municipal Court for domestic violence.
{¶ 2} Appellant was charged with one count of domestic violence in violation of
{¶ 3} Officer Sorber testified that on January 11, 2016, she responded to a residence on Ross Avenue in Hamilton, Ohio upon report of a fight. Upon arrival, the officer found Jennifer and Jennifer‘s mother. Appellant was not present. Officer Sorber observed red marks on the right side of Jennifer‘s face consistent with fingernail scratches. The officer denied independent knowledge of how the scratches on Jennifer‘s face originated and acknowledged they could have been self-inflicted. The officer observed no other visible signs of injury or struggle upon Jennifer‘s person. Jennifer reported to Officer Sorber what had occurred. During the officer‘s investigation, it was discovered that Jennifer was subject to an outstanding warrant for “dog tags.” Consequently, Officer Sorber arrested Jennifer and took her to the police station for booking and then to the county jail. During the booking process, Officer Sorber obtained the January Statement from Jennifer regarding what had transpired between Jennifer and appellant on January 11, 2016. The January Statement stated that appellant had accused Jennifer of cheating on him, began screaming at her, dug his fingernails into the right side of her face, and choked her. Officer Sorber stated that the January Statement was consistent with what Jennifer had told her about the incident at the
{¶ 4} Jennifer testified that she and appellant were residing with their son at the Ross Avenue home on January 11, 2016. Jennifer stated that she and appellant “did argue a little bit” on that day, but that she did not remember if the argument became physical. Jennifer denied any recollection of making the January Statement. Upon being shown the statement, she acknowledged that it contained her handwriting and signature. She confirmed that the Hamilton Police Department statement form upon which the statement was written provided above her signature that the statement was true when it was made. However, when asked if the January Statement was true when she made it, Jennifer replied, “I‘m not sure.” Explaining, Jennifer stated that she has severe anxiety and that “my panic disorder makes everything seem a lot worse than it is.”
{¶ 5} At this juncture, the state moved the trial court to allow the January Statement to be read into evidence pursuant to
{¶ 6} On cross-examination, Jennifer denied any memory of what occurred on January 11, 2016, admitted that she “over exaggerates sometimes,” and twice testified that she did not believe the January Statement reflected what happened. Jennifer acknowledged she understood it is important to be truthful when speaking with the police and that she tried to be truthful with them.
{¶ 7} By March 26, 2016, Jennifer, appellant, and their son had moved to a residence on Forrest Avenue in Hamilton, Ohio. Jennifer stated that she and appellant had a verbal altercation that day over a photograph depicting Jennifer and a friend. The photograph upset appellant and he again accused Jennifer of cheating on him. Jennifer denied any
{¶ 8} At this juncture, the state apparently moved the trial court to allow Jennifer to read the March Statement into evidence pursuant to
{¶ 9} On cross-examination, Jennifer denied recollection of writing the March Statement. Jennifer stated that appellant could have threatened to kill her, but that she had no specific recollection of such a threat.
{¶ 10} The state rested, and without objection, the Statements were admitted into evidence. The trial court subsequently denied appellant‘s
{¶ 11} Appellant testified and admitted that he and Jennifer have a tumultuous marriage, involving frequent arguments and sometimes pushing and punching each other. However, appellant specifically denied scratching and choking Jennifer on January 11, 2016, and threatening to kill her on March 26, 2016. Appellant stated the only threat he made on March 26, 2016, was to end the marriage if Jennifer‘s behavior continued. Appellant testified he left the premises on March 26, 2016, because “it was best for me to leave until she got * *
{¶ 12} After the close of the evidence and following closing arguments by the state and defense counsel, the trial court considered the evidence and stated,
When [Jennifer] testified here today, um – she testified about what she said was some kind of unusual medical condition that she has where she can‘t remember things and over exaggerates things so much though she‘s on disability for it. * * * And I think that she said that today because she was trying to explain why she was lying here today and I felt like she was clearly lying everywhere that she could here today. Um – because she‘s trying not to have the defendant be convicted and she‘s trying to help the defendant. In this case we heard statements that the defendant made to the police the day that these incidents happened and to the extent that these statements can be verified. Well, there were marks on her face and they were scratch marks on her face and says what she said in the statement. The statement seemed to me the written statement seemed to me to be truthful renditions of what happened close in time to when they happened and based on both of these statements I‘m going to find the defendant to be Guilty on both of these cases.1
{¶ 13} Appellant appeals his convictions, raising three assignments of error.
{¶ 14} Assignment of Error No. 1:
{¶ 15} MR. PROFFITT‘S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 16} Appellant argues defense counsel was ineffective at trial for failing to object to inadmissible hearsay evidence, namely, defense counsel failed to object to Jennifer reading the Statements into evidence and to allowing the Statements to be admitted as exhibits.
{¶ 17} To prevail on an ineffective assistance of counsel claim, appellant must show his trial counsel‘s performance was deficient, and that he was prejudiced as a result. State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel‘s performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel‘s errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.
{¶ 18} Before we address whether defense counsel‘s failure to object to the Statements was ineffective assistance of counsel, we first consider whether the Statements qualified as a hearsay exception for recorded recollection under
{¶ 19}
{¶ 20} Pursuant to the above definitions, the Statements were hearsay. The Statements were made by Jennifer other than while testifying at trial, were assertions of what had occurred on January 11, 2016, and March 26, 2016, and were offered by the state to prove what occurred on those days between Jennifer and appellant. The trial court
{¶ 21} Hearsay is generally inadmissible, unless it falls within one of the numerous exceptions under
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
{¶ 22} In order to admit a statement into evidence under
{¶ 23} Under
{¶ 24} Jennifer testified she was “not sure” if the January Statement accurately reflected what happened on January 11, 2016, because her “panic disorder makes everything seem a lot worse than it is.” Jennifer further testified she thought she had made a statement concerning the March 26, 2016 incident, but did not recognize the March Statement when it was presented to her at trial.
{¶ 25} The state established through Jennifer‘s testimony that the Statements were made in her handwriting and that the Hamilton Police Department forms upon which she had written the Statements provided above the signature line, “I have read the statement and it is true and correct.”
{¶ 26} However, Jennifer‘s mere acknowledgment that the forms upon which the Statements were written contain the aforementioned preprinted language does not satisfy the requirement under
{¶ 27} The trial court did not believe Jennifer‘s testimony concerning the Statements. That is the trial court‘s prerogative as the trier of fact and we should defer to this determination. However, Jennifer‘s unbelievable testimony that the Statements did not, or may not, correctly reflect her prior knowledge of the incidents, is not proof that the Statements correctly reflected her prior knowledge. Rather, Jennifer‘s incredible testimony leaves the issue unresolved. This does not satisfy the affirmative foundational requirement under
{¶ 28} Furthermore,
{¶ 29} Based upon the foregoing, we find that the Statements were not within the ambit of the
{¶ 30} We now consider whether defense counsel‘s failure to object to the admission of the Statements is ineffective assistance of counsel.
{¶ 31} As set forth above, the Strickland test consists of two prongs; a performance prong (did counsel‘s performance fall below an objective standard of reasonableness), and a prejudice prong (is there a reasonable probability that the result of his trial would have been different, but for counsel‘s errors). Both prongs must be established for counsel to be found to have provided ineffective assistance. State v. Myers, 12th Dist. Fayette No. CA2005-12-035, 2007-Ohio-915, ¶ 33.
{¶ 32} The fact that the admission of the Statements was objectionable does not, in and of itself, establish that counsel‘s performance was deficient. “[A]ttorneys are given a ‘heavy measure of deference’ in their decision making and there exists a ‘strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.‘” Id.; Strickland, 466 U.S. at 689. Refraining from objecting to otherwise objectionable evidence may, depending upon the circumstances, be sound trial strategy.
{¶ 33} It is apparent that defense counsel‘s trial strategy was to attack the veracity of the Statements rather than oppose their admissibility. In opening statement, defense counsel said, “I believe the statements of the witness or (sic) likely not be corroborated by the physical evidence that was observed by the officers.” In a case such as this, where the state‘s case is dependent upon the Statements, it would be a sound trial strategy to attack the veracity of the Statements, if they are admitted. However, such a trial strategy does not exclude a primary trial strategy of opposing admission of this damaging evidence. Opposing admission of the Statements sacrifices nothing in terms of a trial strategy to attack the
{¶ 34} No reasonable trial strategy is apparent in defense counsel‘s failure to object to the admission of the Statements, upon which the state‘s case depended.5 Defense counsel‘s failure to object to the admission of the Statements falls below an objective standard of reasonableness. Appellant has therefore satisfied the Strickland performance prong.
{¶ 35} Consideration of the Strickland prejudice prong requires an inquiry as to whether there is a reasonable probability that the result of appellant‘s trial would have been different, but for counsel‘s error. Clearly, without the Statements, the state would have been unable to establish what occurred between appellant and Jennifer on January 11, 2016, and March 26, 2016. While Officer Sorber observed scratches on Jennifer‘s face on January 11, 2016, those observations lack context absent the January Statement. The state‘s case was dependent upon the Statements. Indeed, the trial court‘s announcement of its verdict unequivocally reveals that the guilty findings were based upon the Statements: “[T]he written
{¶ 36} In light of the foregoing, we find that appellant received ineffective assistance of counsel at trial when defense counsel failed to object to the admission of the Statements into evidence.6
{¶ 37} Appellant‘s first assignment of error is sustained.
{¶ 38} Assignment of Error No. 2:
{¶ 39} THE TRIAL COURT VIOLATED MR. PROFFITT‘S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL WHEN IT ADMITTED INTO EVIDENCE WRITTEN STATEMENTS CONTAINING INADMISSIBLE HEARSAY.
{¶ 40} Appellant argues the trial court erred in directing Jennifer to read the Statements into evidence and in admitting the Statements as exhibits.
{¶ 41} We are mindful that the admissibility of evidence is within the sound discretion
{¶ 42} It is not the trial court‘s responsibility to interject itself into defense trial strategy. Trial strategy may be promoted by the admission of otherwise inadmissible evidence. Jennifer was the first witness to testify at trial and the Statements were admitted during the state‘s case-in-chief, direct examination of Jennifer and before defense counsel had cross-examined her. Defense counsel declined the trial court‘s invitation to object to the January Statement and interjected no objection to the March Statement. At this early stage of the trial, the trial court could have no inkling of what the evidence would show and what the defense strategy may be. Certainly, the trial court did not abuse its discretion by admitting the Statements in that context. To have done otherwise would risk substituting the trial court‘s conception of sound trial strategy for defense counsel‘s.
{¶ 43} Because defense counsel did not object to the admissibility of the Statements, and the trial court did not discuss
{¶ 44} The reality is, trial courts often permit the admission of inadmissible evidence when there is no objection. In the usual case, this is not an abuse of discretion. In such instances, the error, if any, is not in the trial court‘s admission of the evidence, but in counsel‘s failure to resist its admission and preserve for appeal any abuse of discretion in the admission of the inadmissible evidence.
{¶ 45} As set forth above, defense counsel specifically stated he had no objection to Jennifer reading the January Statement into evidence, even after being invited to do so by the trial court, and made no objection when the state moved for Jennifer to read the March Statement into evidence. Defense counsel also did not object to the admission of the Statements as exhibits.
{¶ 46} Appellant‘s second assignment of error is accordingly overruled.
the trial court announced its verdict and long after the Statements had been admitted during Jennifer‘s direct examination by the state. It is apparent that the trial court‘s comments were related to its weighing of the evidence rather than its admissibility as the court relied upon Officer Sorber‘s testimony which was not offered until after the Statements had been admitted.
{¶ 48} MR. PROFFITT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 49} Appellant argues his domestic violence convictions are against the manifest weight of the evidence. However, this assignment of error is moot given our holding under the first assignment of error that defense counsel was ineffective at trial.
{¶ 50} The judgment of the trial court finding appellant guilty of two counts of domestic violence in violation of
HENDRICKSON, P.J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶ 51} In determining the trial court relied upon extrinsic evidence, the majority misapplies the facts to the foundation requirements for admission of evidence pursuant to
{¶ 52} The majority suggests an appellate review best determines which portions of Jennifer‘s testimony should be relied upon in determining the trustworthiness of her
Sufficient Foundation Existed
{¶ 53} In considering the trial court‘s observations and the way the evidence developed, the trial court did not abuse its discretion in finding there was sufficient indicia of trustworthiness to admit the victim-witness’ prior statements.
{¶ 54} The staff notes specific to
The exception gathers its circumstantial guarantee of trustworthiness from the fact that the person having made the statement is on the witness stand subject to oath, cross-examination and demeanor evaluation. (1) If the statement was reduced to writing at or near the time of the event and (2) the witness can testify that the writing accurately describes the event that he observed first hand and (3) that it does not now refresh the independent recollection of the witness, it may be admissible as an exception to the hearsay rule.
(Emphasis added, numbers added.)
{¶ 55} In the instant case, the victim-witness testified (1) her statements were reduced to writing at or near the time of the event by her going to the police department and handwriting her statements, (2) all indications are that when she wrote the statements, she intended them to be truthful and, (3) that even after reading the statements, she does not remember what happened. Her testimony was in accordance with
{¶ 56} The majority emphasizes the victim-witness’ uncertainty, however, it is the trial court that is in the best position to judge the victim-witness’ credibility regarding her testimony. City of Hamilton v. Rose, 12th Dist. Butler No. CA2000-07-146, 2001 WL 432732, *3. The majority‘s judgment is severely hampered by not having the opportunity to observe the victim-witness and evaluate her demeanor and delivery of testimony.
{¶ 57} Case law cited by the majority would agree with the analysis herein:
Where the witness cannot recall the preparation of the record and can testify only that he would not have signed or prepared the memorandum had he not believed it to be a true and accurate statement of the event in question[,] * * * [m]ost commentators advocate admitting the statement, despite the fact that the foundation is nothing more than a general assertion of honesty which sheds little light on accuracy.
(Emphasis added). City of Dayton v. Combs, 94 Ohio App.3d 291, 301 (2d Dist.1993), citing 1 Weissenberger, Ohio Evidence, Section 803.60, at 59 (1993).
{¶ 58} Combs presented facts very similar to those before us. In Combs, the witness acknowledged his signature on the statement and, if the statement says something, it is “probably” true, and that his statement was “to the best of his ability.” The appellate court said that “albeit not a perfect foundation,” the testimony contained sufficient indicia of the statement‘s trustworthiness to meet
{¶ 59} There are many cases where the victim acknowledges his or her signature, thus indicating a truthful statement to the police. See State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, ¶ 20 (the victim signed a statement after her alleged assault and
{¶ 60} Although in vague and reluctant terms, the victim-witness herein testified to the veracity of the statements she previously gave the police. When asked, prior to the statement being read into evidence, whether she signed the statement, she testified that it was her signature on the statement, and that the statements indicated it was true when made. This second statement was also in her handwriting, and she testified it contained her signature, which she knew reflected her statement was true when she made it.
{¶ 61} In supporting a reversal of this case, the majority cites State v. Ross, 6th Dist. Huron No. H-11-022, 2013-Ohio-1595. Similar to our current situation, Ross argued on appeal that it was plain error for the witness’ video interview to be admitted. The Sixth District disagreed, finding that, “an adequate foundation was laid for the use of [the] video pursuant to Evid.R. 803(5).” Id. at ¶ 19. The foundation in Ross is extremely similar to the foundation presented in our current case.
| In Ross: | Present case: |
|---|---|
| i. At the time of her testimony, the victim-witness could not remember everything that had occurred; | i. At the time of her testimony, the victim-witness said she did not remember the events that occurred; |
| ii. While testifying, the victim-witness was not sure of what she told the police back when she was interviewed; | ii. While testifying, the victim-witness indicated that she was not sure as to what she told the police in her statements; |
| iii. The victim-witness acknowledged in her testimony that she gave a recorded video | iii. The victim-witness acknowledged handwriting the statements and that the signatures on the |
| statement to the police; | statements were hers as well; |
| iv. The video interview occurred close in time to when the event occurred; | iv. She testified that the statements she gave to the police were close in time to the events when they occurred; |
| v. She believed she had been truthful in her interview at the time it was made. | v. When she gave her statements to the police, she knew “it is important to tell the truth;” she thought she told the truth when she gave her statements; and, that her statements reflect they were truthful when written. |
{¶ 62} Where the foundation sub judice was equivalent to the foundation found acceptable in Fields, Combs and Ross, the trial court herein was not unreasonable, arbitrary, or unconscionable in its ruling. Equally important to note, this comparison of testimony does not rely upon extrinsic evidence, as the majority suggests.9
{¶ 63} The trial court was the only one in a position to assess and evaluate demeanor in determining the credibility of the victim-witness’ testimony. The trial court specifically found the victim-witness’ in-court-testimony lacked credibility. The court went so far as to express it was obviously apparent the victim-witness was lying in an effort to help her husband in his defense. Additionally, the trial court specifically noted that the victim-witness’ prior statements were truthful at the time they were made and were “truthful renditions of what happened close in time to when they happened.” We should not second guess the trial court on these findings.
{¶ 65} While the foundation herein may not be perfect, and while the majority may be “less persuaded by the trial court‘s reasoning process than by the countervailing arguments” such does not support finding the trial court abused its discretion. Morris, 2012-Ohio-2407 at ¶ 14.10 Therefore, even assuming defense counsel had objected, Proffitt‘s first assignment of error must be overruled, as the trial court had sound reason in allowing the victim-witness to read her statements into evidence pursuant to
Strickland – 1st Prong
{¶ 66} To establish constitutionally-ineffective assistance of counsel, it must be clearly demonstrated that counsel‘s performance was deficient such that the defendant was deprived of a fair trial. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” State v. Carroll, 4th Dist. Ross No. 15
{¶ 67} When a 9-1-1 fight call is made to the police; the scene responded to shows signs of a thrown, busted TV and fresh holes in the wall; and the victim has obvious abuse injuries to her face which are observed by the police; and there is a history of past physical altercations in the relationship, defense counsel‘s trial strategy becomes difficult to formulate, and even impossible, if the victim testifies truthfully to what occurred.
{¶ 68} Yet consider, by the time trial rolls around, the victim-witness becomes reluctant to assist in the prosecution of her husband and father of her child. She now is willing to testify in a way that undermines or negates the previous statements she gave to police. Not willing to say she lied in her statements, making her subject to a falsification charge, the victim is willing to aid her abuser by indicating she does not remember what she said to the police. Now the defense strategy begins to take form and develop. With the victim-witness’ subtle yet furtive cooperation, defense counsel obtains a strategy to discredit the victim-witness’ prior statements.11
{¶ 69} Therefore, pursuant to the defense strategy, the admission into evidence of the victim-witness’ prior recorded statements became irrelevant, because the strategy was to discredit the witness and her previous statements. The victim-witness offers that she cannot remember what happened, that she has a panic/anxiety disorder, her brain just shuts down, she was under the influence of medication, and she frequently “exaggerates.” The trial court, however, saw through defense counsel‘s strategy.12
{¶ 71} When the victim-witness skipped over a few sentences reading her prior statement, defense counsel objected because he wanted every line to be read. In that exchange, the court informed defense counsel that only defense counsel could request admission of the physical statements.
{¶ 72} Defense counsel knew that only he could have the statements admitted. It is clear he did not consider the statements anymore harmful than the testimony itself. Since his
{¶ 73} Merely because the trial tactics defense counsel employed were ultimately unsuccessful, it does not mean that counsel‘s performance was deficient. Debatable trial tactics and strategies do not constitute deficient performance. State v. Payton, 124 Ohio App.3d 552 (12th Dist.1997). Judicial scrutiny of counsel‘s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), paragraph two of the syllabus.
{¶ 74} Our precedent has consistently abided by the “strong presumption” and “wide range” of professional assistance that can be rendered before being considered deficient. State v. Revels, 12th Dist. Butler Nos. CA2001-09-223 and CA2001-09-230, 2002-Ohio-4231, ¶ 25 (failing to present a false identification defense and choosing not to cross-examine the eyewitness was not deemed to be deficient performance); State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814 (failing to proffer an exculpatory statement, to make objections, to cross-examine the state‘s expert, and to move the court based on insufficiency of evidence was not deemed to be deficient performance); and State v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013, 2017-Ohio-790 (failing to object “no fewer than thirty three” times to hearsay and failing to object “no fewer than twenty one” times to unqualified expert testimony, was not deemed to be deficient performance).
{¶ 75} The majority finds “no reasonable trial strategy is apparent” when defense counsel declined to object to the victim-witness’ prior statements being read into evidence. However, using cross-examination to discredit a witness’ prior statements is a reasonable strategy particularly in a domestic violence case resting upon the testimony of an abused and reluctant wife and mother.
{¶ 76} Until today, no Ohio precedent holds the absence of a “primary strategy,” rather than defense counsel‘s implemented strategy, operates to create constitutionally-ineffective assistance of counsel. To explain its reasoning, the majority suggests that Strickland supports a reversal for ineffective assistance if the appellate court can picture the existence of a “primary” strategy which could have been pursued before, and in spite of, trial counsel‘s strategy. However, the law is clear and long-established that appellate courts must not engage in a weighing of strategies when addressing whether a defendant was denied effective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72 (1995).
{¶ 77} For example, the Second District Court of Appeals recently addressed a similar argument that an individual is denied effective assistance of counsel because a better trial strategy existed. State v. Hartman, 2d Dist. Montgomery No. 26609, 2016-Ohio-2883. Hartman was accused of rape, and at trial, the victim testified to the events of non-consensual sex. However, on direct, the victim did not go into detail about force being used. During cross-examination, defense counsel asked the victim specific questions about any force Hartman had used to challenge her credibility by bringing up the victim‘s inconsistent statements to investigators about Hartman‘s use of force. The questions on cross-examination, along with the victim‘s answers to those questions, were very damaging because they allowed the jury to hear details about the force Hartman used during his crimes.
{¶ 78} Hartman claimed on appeal that his trial counsel was ineffective for employing such a strategy and should have avoided any questions about force on cross-examination. The Hartman court disagreed, and refused to engage in weighing which strategy was better. Hartman‘s counsel could have used the lack of force as a defense strategy, yet, the appellate court determined:
In a case that rests entirely on the credibility of the witnesses, a strategic choice to conduct cross-examination of the victim on factual issues relating to elements of the offense is not automatically ineffective assistance of counsel. In the case before us, it was a valid defense strategy to attack the credibility of the victim through the use of prior inconsistent statements, a well-established trial strategy.
{¶ 79} Discrediting a victim-witness’ prior statements is certainly a reasonable strategy, not professional performance in violation of the Constitution. Id. at ¶ 46 (“Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel“); State v. Bajaj, 7th Dist. Columbiana No. 03 CO 16, 2005-Ohio-2931 (reasonable defense strategy to discredit victim); and State v. Reid, 8th Dist. Cuyahoga No. 83206, 2004-Ohio-2018 (defense counsel‘s failure to object to evidence of defendant‘s previous sexual assault of victim was reasonable trial strategy where counsel intended to discredit the victim).
{¶ 80} When the majority focuses narrowly upon the single moment of a potential objection, it precludes itself the broader opportunity to perceive the totality of defense counsel‘s strategy during the trial. It is the overall record that discloses trial counsel‘s strategy, and not objecting was merely a part of that strategy. Simply because there might be a better way, in hindsight, to defend Proffitt does not mean that trial counsel‘s
Strickland – 2nd Prong
{¶ 81} The prejudice prong of Strickland basically requires that the defendant demonstrate that “but for counsel‘s errors, the result of the proceedings would have been different.” State v. Adams, 4th Dist. Lawrence No. 15CA2, 2016-Ohio-7772, ¶ 91. Generally, courts decline to speculate or assume the existence of prejudice. Id. To succeed on this prong, the defendant must “affirmatively establish” that the claimed prejudice had a detrimental effect on the outcome. Id.
{¶ 82} When the state attempted to use the prior recorded statements by having them read into evidence, defense counsel had only two directions he might travel. He could take an up-the-hill fight to keep the evidence out, or he could continue coasting downhill with his original strategy of discrediting the prior statements through cross-examination. If counsel chose the former, we know with certainty the state would have attempted to rehabilitate or cure any suggested deficiency in the establishment of a foundation. Defense counsel chose to stick with his strategy, rather than accepting the boulder of Sisyphus. To assume the state would have been ultimately unsuccessful and defense counsel could have kept out evidence
{¶ 83} An objection would only have served to focus the state on efforts to emphasize the trustworthiness of the past statements. It is unreasonable to assume the state would immediately fold its tent simply because of an objection. Further questioning may well have developed the prior statements as having indicia of trustworthiness or that the victim-witness was aligned with her husband and his defense, thus permitting the state‘s use of leading questions.
{¶ 84} In speculating on how the trial might have proceeded had Proffitt‘s counsel objected, the majority cannot say with any level of certainty the outcome would have been different. If a witness claims a lack of memory as to a prior statement he or she gave, such can be treated as a denial, and the use of extrinsic evidence may be permitted. State v. Pierce, 2d Dist. Montgomery No. 24323, 2011-Ohio-4873, ¶ 2. Other evidentiary avenues permit the use of extrinsic evidence depending on how the facts develop. See
{¶ 85} The defendant clearly has the burden to prove his claim of prejudice. State v. Bradley, 42 Ohio St.3d 136, 143 (1989). However, we need not speculate as to what turn the trial testimony may have taken if there had been an objection because the defendant‘s failure on the first prong of Strickland makes it unnecessary to engage in an analysis of the prejudicial impact of any alleged errors. Id. Simply stated, Proffitt received assistance of counsel, and his Sixth Amendment right to counsel was not violated.
CONCLUSION
{¶ 86} Based on the record, the trial court properly admitted the victim-witness’
{¶ 87} Furthermore, and even if the evidence was inadmissible, Proffitt cannot demonstrate that he received ineffective assistance of counsel where counsel‘s lack of objection to the statements was trial strategy. The fact it was not the “primary strategy” that the majority would have preferred to see is of no consequence. Our review standard is highly deferential and we must avoid temptation to focus on the outcome or employ hindsight. The trial court‘s ability to see through the credibility issues raised by defense counsel‘s trial strategy does not render such assistance ineffective. As such, I respectfully dissent from the majority‘s decision to reverse Proffitt‘s convictions.