State v. Adams

Citation2011 Ohio 5361
Decision Date14 October 2011
Docket NumberCASE NO. 08 MA 246
PartiesSTATE OF OHIO, PLAINTIFF-APPELLEE, v. BENNIE ADAMS, DEFENDANT-APPELLANT.
CourtUnited States Court of Appeals (Ohio)

2011 Ohio 5361

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
BENNIE ADAMS, DEFENDANT-APPELLANT.

CASE NO. 08 MA 246

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

Dated: October 14, 2011


OPINION

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 07CR1261.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Attorney Martin Desmond
Assistant Prosecuting Attorneys

For Defendant-Appellant: Attorney John Juhasz
Attorney Lynn Maro

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

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VUKOVICH, J.

¶{1} Defendant-appellant Bennie Adams appeals from his conviction of aggravated murder and the accompanying death sentence which was entered in the Mahoning County Common Pleas Court. He sets forth twenty-one assignments of error in a brief spanning five hundred twenty-eight pages. For the following reasons, the judgment of the trial court is hereby affirmed.

STATEMENT OF THE CASE

¶{2} Gina Tenney was a nineteen-year-old university student living in a duplex apartment on Ohio Avenue in Youngstown. Appellant Bennie Adams lived with his girlfriend in the apartment below. Ms. Tenney broke up with her boyfriend in the fall of 1985 at which time appellant began calling her. She eventually changed her telephone number. On December 25, 1985, someone tried to break into Ms. Tenney's apartment. On December 28, 1985, she reconciled with her boyfriend, and he stayed overnight.

¶{3} He left her apartment at 1:00 p.m. on December 29. (Tr. 121-122). She then went to a movie and dinner with a friend and started for home between 4:30 and 5:00 p.m. (Tr. 140, 143). That evening, Ms. Tenney telephoned her mother in Ashtabula and asked her to come get her because she was "in the wrong place." At 9:30 p.m., someone used her ATM card multiple times at a bank, entering that deposits were being made while placing empty envelopes in the machine and making four unsuccessful withdrawal requests. (Tr.168, 260-263).

¶{4} On the morning of December 30, 1985, the body of Gina Tenney was discovered in the Mahoning River, a few miles from her residence. There were ligature marks on her neck and wrists, and rape kit swabs revealed the presence of semen. (Tr. 417, 471, 575). Police arrived at Ms. Tenney's apartment to look for evidence. Her car was parked in front. (Tr. 161). Appellant let the police into the apartment's common area. He then let them into his apartment to use his telephone to call the landlord in order to unlock Ms. Tenney's apartment. (Tr. 147-148).

¶{5} While in appellant's apartment, an officer recognized Horace Landers as a person with an outstanding arrest warrant. A shirtless Mr. Landers was handcuffed and provided with a shirt and what the police believed was his jacket. The jacket was searched for safety reasons before it was placed on Mr. Landers, and a detective

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found Ms. Tenney's ATM card and a welfare card containing appellant's name in the pocket. (Tr. 151). Contemporaneously, Mr. Landers stated that the jacket belonged to appellant.

¶{6} The police arrested appellant for receiving stolen property. Appellant's girlfriend, who was the main tenant, gave consent to search the apartment. Ms. Tenney's television, upon which appellant left his fingerprints, was sitting on a bed. (Tr. 158-159, 200). Ms. Tenney's keychain, containing her house and car keys, was found in the bathroom trash. (Tr. 155-156). In another trash can, police found a potholder that matched a potholder found in Ms. Tenney's apartment. (Tr. 157). Samples from this potholder disclosed red pubic and head hair consistent with that of Ms. Tenney and hair fragments belonging to an African-American. (Tr. 562-563).

¶{7} Police interviewed the Allies, a couple who used the ATM immediately after Ms. Tenney's card had been used. They stated that the person using the ATM was a black male who had a scarf covering most of his face and who did not seem to know what he was doing. (Tr. 294-295, 312). On January 2, 1986, Mr. Allie picked Ms. Tenney's car out at the police garage by sight and sound as being the one driven by the ATM user. (Tr. 170-171, 217, 297-298, 313). On January 8, 1986, the Allies attended a line-up containing appellant and Mr. Landers. (Tr. 307). Mr. Allie would not identify anyone at the time, and Mrs. Allie identified Mr. Landers. (Tr. 338-339).

¶{8} A short time later, Mr. Allie called the detective to express that they knew which person in the line-up was the ATM user, but they were afraid to identify him at the time because too many people were watching them. (Tr. 299, 307, 314-315, 317, 325). Mr. Allie testified that he knew appellant from the neighborhood and that he recognized him as soon as he turned from the ATM machine. (Tr. 290, 309-310). In fact, he stated that appellant put his hand on the hood of their car and waved. (Tr. 294-295). Mrs. Allie testified that she identified Mr. Landers at the station because she was terrified with the set up and he was the opposite of appellant, whom she later identified from a photograph of the line-up. (Tr. 325, 327).

¶{9} In February of 1986, BCI testing of the semen found on the victim's underwear excluded Mr. Landers and Ms. Tenney's boyfriend but did not exclude appellant. The combination of Type B and non-secretor indicators was said to occur in four percent of the black population of which appellant was a member. (Tr. 556-557).

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¶{10} Appellant's receiving stolen property charge was presented to a grand jury on February 21, 1986. However, a no bill was returned, which apparently made the prosecution leery of presenting a murder charge to the grand jury at that time. In 1989, samples were sent to Virginia for DNA testing. The results stated that the semen was consistent with appellant but was also consistent with 8% of the Caucasian population and 12% of the black population. Thus, the statistics were now even worse for the state's case.

¶{11} In 2007, the forensic evidence was submitted to BCI for retesting with new technology. DNA standards were recovered from the rape kit swabs. Appellant was arrested on October 4, 2007 to ensure that a search warrant could be executed to obtain his DNA. The results came back positive on October 11, 2007.

¶{12} Appellant was immediately indicted for aggravated murder, rape, aggravated burglary, aggravated robbery, and kidnapping. (Tr. 582, 587). A death specification was thereafter added by a superseding indictment, which alleged that he committed the aggravated murder while committing, attempting, or fleeing immediately after committing or attempting to commit one of the other enumerated underlying felonies and that he was the principal offender. Appellant filed various motions, most of which were denied. On July 28, 2008, the court dismissed counts two through five (the underlying felonies) on statute of limitations grounds. The trial for aggravated murder proceeded through most of October of 2008.

¶{13} On October 22, 2008, the jury returned a verdict of guilty on the aggravated murder charge and on the death specification. On October 29, 2008, the jury recommended a death sentence. On November 5 and 6, 2008, the court adopted this recommendation and filed an opinion weighing the various statutory factors. A timely appeal was filed with this court. Appellant filed a brief containing 528 pages. Appellant sets forth twenty-one assignments of error, which shall be grouped into four main sections: pretrial issues, jury selection issues, trial issues, and penalty phase issues.

PRETRIAL ISSUES

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¶{14} The pretrial issues are contained in the following six assignments of error: three, four, and eleven (dealing with suppression) and five, twelve, and thirteen (dealing with delay).

ASSIGNMENT OF ERROR NUMBER THREE

¶{15} Appellant's third assignment of error alleges:

¶{16} "APPELLANT'S CONVICTIONS AND SENTENCES ARE IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO FILE A MOTION TO SUPPRESS EVIDENCE, AND UNRELIABLE EYEWITNESS TESTIMONY WAS ADMITTED AGAINST APPELLANT AT TRIAL [CITATIONS OMITTED]."

¶{17} We review a claim of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington (1984), 466 U.S. 668. Specifically, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136.

¶{18} To show prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Prejudice may not be assumed but must be affirmatively shown. See State v. McGee, 7th Dist. No. 07MA137, 2009-Ohio-6397, ¶13.

¶{19} When considering an ineffective assistance of counsel claim, the reviewing court should not consider...

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