State v. Reginald Jells
| Decision Date | 30 April 1998 |
| Docket Number | 98-LW-1667,72484 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. REGINALD JELLS, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
Civil appeal from the Court of Common Pleas, Case No. CR-217570.
For Plaintiff-Appellee: ARTHUR A. ELKINS, ESQ., CARMEN MARINO ESQ., ASSISTANT COUNTY PROSECUTORS, Eighth Floor, Justice Center, 1200 Ontario Street, Cleveland, Ohio 44114.
For Defendant-Appellant: DAVID H. BODIKER, ESQ., JENNIFER P HITE, ESQ., RICHARD J. VICKERS, ESQ., ASSISTANT STATE PUBLIC DEFENDERS, 8 East Long Street, Columbus, Ohio 43266-0587.
Petitioner Reginald Jells appeals from the dismissal of his amended petition for post conviction relief. For the reasons set forth below, we affirm.
On May 7, 1987, petitioner was indicted pursuant to a four count indictment. Count one charged petitioner with aggravated murder in connection with the death of Ruby Stapleton. This charge also contained felony-murder specifications for kidnapping and aggravated robbery. Counts two and three charged petitioner with kidnapping Stapleton and her son, Devon. Count four charged him with the aggravated robbery of Stapleton.
The matter proceeded to trial before a three judge panel on August 24, 1987. Petitioner was subsequently acquitted of the aggravated robbery charge and the aggravated robbery specification following the presentation of the state's evidence. Thereafter, petitioner was convicted of aggravated murder with a felony-murder specification for kidnapping, and was also convicted of both kidnapping charges. Following a mitigation hearing, the panel sentenced petitioner to death upon the aggravated murder conviction, and ordered that he serve concurrent terms of five to twenty-five years for the kidnapping charges.
Upon direct appeal to this court, petitioner advanced eleven errors for our review. As is relevant to the instant matter, petitioner claimed: that the trial court erred in determining that Devon, who was five years old at the time of trial, was competent to testify; that the photographic and line-up identification procedures employed by police were so impermissible suggestive as to give rise to a very substantial likelihood of misidentification; that the evidence was constitutionally insufficient to support his convictions for aggravated murder and kidnapping; and that the trial court erred by allowing Cleveland Police Detective James Yonkers to give expert opinion evidence regarding a shoe print. This court determined that the assigned errors were without merit and affirmed petitioner's conviction and death sentence. See State v. Jells (April 20, 1989), Cuyahoga App. No. 54733, unreported.
Upon further appeal to the supreme court, petitioner asserted, inter alia: that his jury waiver was constitutionally insufficient) that Devon was not competent to testify; that the photo array shown to Devon and witness Owen Banks was unduly suggestive because only petitioner's photograph was taken outdoors; that Det. Yonkers' testimony was not based on a reasonable degree of scientific certainty; and that the line-up shown to witness Edward Wright was unduly suggestive and inherently unreliable because petitioner was wearing prison garb and the other men were not. The supreme court affirmed petitioner's conviction and also affirmed his death sentence following independent review. See State v. Jells (1990), 53 Ohio St.3d 22.
On November 8, 1991, petitioner filed a motion to vacate his conviction pursuant to R.C. 2953.21. On April 26, 1995, he filed an amended petition. Within the amended petition, petitioner asserted twenty-seven causes of action which he maintained rendered his conviction void or voidable.
The trial court dismissed the amended petition for post-conviction relief without a hearing. Petitioner now appeals from this ruling and assigns ten errors for our review. For convenience and clarity, we shall combine petitioner's assignments of error where they share a common basis and shall address them out of their predesignated order.
Petitioner's first assignment of error states:
THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT JELLS' CLAIM THAT TRIAL COUNSEL WERE INEFFECTIVE IN THEIR REPRESENTATION THROUGHOUT HIS CAPITAL TRIAL.
Within this assignment of error, petitioner claims that his trial counsel were ineffective in connection with: petitioner's decision to waive a jury trial; their failure to properly rebut or suppress the evidence presented by the state; their penalty phase representation; and their failure to preserve his right to speak before the death sentence was imposed.
In establishing a claim of ineffective assistance of trial counsel, it is clear that a defendant must make a two-part showing:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington (1986), 466 U.S. 668, 687. Accord State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. The Strickland court also cautioned courts examining the issue that:
49.
When the claim of ineffective assistance of trial counsel is raised in a petition for post-conviction relief, the petitioner bears the burden of submitting evidentiary materials which demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. Absent such a showing, no evidentiary hearing is necessary. State v. Pankey (1981), 68 Ohio St.2d 58, 59.
Petitioner asserts that his counsel informed him that a three judge panel would be best for him because of the pretrial publicity surrounding Stapleton's death and because of Devon's testimony. He further asserts that his counsel never informed him that, inter alia, the three judge panel would also hear the mitigation phase, that if the matter were tried to a jury, all twelve members of the jury would have to agree to convict and sentence him, that a reviewing court would apply a presumption of correctness when reviewing certain errors. He avers, however, that his attorneys "felt that a three judge panel would be best in my case because they felt that a three judge panel would not give me a sentence of death." Amended Petition for Post-Conviction Relief, Exhibit S.
We find that this decision was a strategic choice. Accord State v. Woods (March 5, 1997), Medina App. No. 2589-M, unreported. Moreover, the court examined a similar argument in State v. Sowell (1991), 73 Ohio App.3d 672, 683, and stated:
In his twenty-ninth cause of action, the only cause of action not heretofore addressed, Sowell challenges the knowing and intelligent nature of his waiver of a jury trial. Sowell offered in support of this contention his own affidavit, in which he averred that he executed the waiver upon trial counsel's representation that a trial before a three-judge panel would not result in the imposition of the death penalty. Sowell's "self-serving" affidavit is not, however, sufficient to rebut the record before us, which contains Sowell's written waiver in which he stated that he "knowingly, intelligently and voluntarily waive[d] and relinquish[ed] his right to a trial by Jury * * *." See Jackson, supra. Sowell was, therefore, not entitled to an evidentiary hearing on the challenge advanced in his twenty-ninth cause of action when he failed to sustain his initial burden of demonstrating substantive grounds for relief. See State v. Kapper (1983), 5 Ohio St.3d 36. Upon our determination that Sowell's petition was subject to dismissal without an evidentiary hearing, we overrule the first assignment of error.
In any event, petitioner has not demonstrated how this decision resulted in prejudice to him. He does not show, and we cannot say, that had this case been tried to a jury, the result would have been different. Accord State v. Woods, supra.
Petitioner also asserts that his trial counsel were ineffective for failing to request the assistance of an eyewitness identification expert, serologist expert, and an expert to aid in the cross-examination of Det. Yonkers regarding the footprint evidence. Petitioner additionally complains that his trial attorneys were ineffective in failing to suppress eyewitness...
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