State v. Walton, 2009 Ohio 1234 (Ohio App. 3/16/2009)
| Decision Date | 16 March 2009 |
| Docket Number | No. 88358.,88358. |
| Citation | 2009 Ohio 1234 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Alvin Walton, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
William D. Mason, Cuyahoga County Prosecutor, By: Mary McGrath, Assistant County Prosecutor, 8th Floor Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Plaintiff-Appellee.
Alvin Walton, pro se, Inmate No. 510-029, P.O. Box 1812, Marion, Ohio 43302, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Appellant Alvin Walton has filed a timely application for reopening pursuant to App. R. 26(B) claiming ineffective assistance of appellate counsel. He is attempting to reopen the appellate judgment that was rendered by this court in State v. Walton, Cuyahoga App. No. 88358, 2007-Ohio-5070. In that opinion, we affirmed defendant's convictions for murder, burglary, and having a weapon under a disability. On January 24, 2008, the state of Ohio filed a brief in opposition to the application for reopening. Walton later requested leave of this court to supplement his application to reopen which was granted. The state of Ohio then submitted its response to the amended application. For the reasons stated below, we decline to reopen Walton's original appeal.
{¶ 2} To establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 688, 80 L.Ed.2d 674, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990), 497 U.S. 1011, 110 S.Ct. 3258.
{¶ 3} In Strickland, the United States Supreme Court stated that a court's scrutiny of an attorney's work must be highly deferential. The court further stated that it is too tempting for a defendant to second-guess his attorney after conviction 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." Strickland, 104 S.Ct. at 2065.
{¶ 4} In regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate attorney's discretion to decide which issues he or she believes are the most fruitful arguments. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue, if possible, or at most on a few key issues." Jones v. Barnes (1983), 463 U.S. 745, 77 L.Ed.2d 987,
103 S.Ct. 3308. Additionally, appellate counsel is not required to argue assignments of error which are meritless. Barnes, supra.
{¶ 5} In his first assignment of error, Walton argues that he was denied effective assistance of appellate counsel when appellate counsel failed to raise ineffective assistance of trial counsel for not suppressing tainted evidence and waving the right to suppress evidence. Specifically, Walton argues that the state failed to establish a proper chain of custody because a police officer's improper handling of a piece of evidence contaminated that evidence. We disagree.
{¶ 6} State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061. Furthermore, even if the chain of custody is broken, that fact alone will not render the evidence inadmissible. Rather the broken chain of custody goes to the weight afforded to the evidence. State v. Blevins (1987), 36 Ohio App.3d 147, 521 N.E.2d 1105.
{¶ 7} A review of this matter reveals that there was a proper chain of custody. The jacket was recovered by Officer Nuti who then gave it to the investigating detectives who then gave it to the laboratory for analysis. Nevertheless, as stated above, even if the chain of custody was suspect, the jacket would still have been
admissible. Accordingly, we do not find that appellate counsel was ineffective for failing to raise this issue.
{¶ 8} In the second assignment of error, Walton argues that his appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel because trial counsel failed to object when the state used its first peremptory challenge to remove an African-American male juror. A review of the record however reveals that the state used its first peremptory challenge on a woman. There was a male juror that was removed for cause prior to the exercise of the state's first peremptory challenge, however, the record is silent as to that individual's race. Since a reviewing court cannot decide a direct appeal on the basis of matters outside the trial record, see State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500; State v. George, Cuyahoga App. No. 90511, 2008-Ohio-5128, we cannot find error with regard to counsel's decision not to include this assignment of error.
{¶ 9} In his third assignment of error, Walton asserts that he was denied equal protection under the United States Constitution when the trial judge improperly used his discretion to dismiss a potential black female juror against defense objection. A review of the record indicates that the juror, despite being told to return to the courtroom after a break, failed to return and instead attended a previously scheduled program with the Women, Infant and Children's Program. After admonishing her for her conduct, the trial judge excused her because she was absent from the previous day's voir dire and replaced her with an African-American woman. Accordingly,...
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