[Cite as State v. Clement,
2012-Ohio-582.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94869
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REGINALD CLEMENT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-518986
Application for Reopening
Motion No. 445587
RELEASE DATE: February 13, 2012
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square Ste 1016
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Steven E. Gall
Mary McGrath
Brad S. Meyer
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} On June 24, 2011, the applicant, Reginald Clement, pursuant to App.R.
26(B), applied to reopen this court’s judgment in State v. Clement, 8th Dist. No. 94869,
2011-Ohio-1555,
2011 WL 1168133, in which this court affirmed Clement’s convictions
for one count of aggravated murder, one count of murder, two counts of aggravated
robbery, and two counts of kidnapping, with accompanying firearm specifications.
Clement now argues that his appellate counsel was ineffective for not arguing the
following: (1) the trial court erred in refusing to instruct on the lesser included offenses of
manslaughter and reckless homicide; (2) the trial court erred in refusing to instruct the
jury that pleas of guilty by co-defendants could not be considered as substantive evidence
of Clement’s guilt; (3) the trial court erred in not instructing the jury on a culpable mental
state as an aider and abettor; (4) the trial court erred when it instructed on flight; (5) trial
counsel was ineffective for failing to object to the jury instructions, for failing to request
an instruction on identification and for failing to file a motion to suppress Dominic
Rodgers’s identification of Clement; (6) the trial court erred in sentencing for aggravated
murder when the jury returned a verdict of guilty for murder; and (7) the trial court erred
in not declaring a mistrial when there was a blatant discovery violation. For the
following reasons, this court denies the application to reopen.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
the applicant must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984) ; State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d
373 (1989), cert. denied,
497 U.S. 1011,
110 S.Ct. 3258,
111 L.Ed.2d 768 (1990); and
State v. Reed,
74 Ohio St.3d 534,
660 N.E.2d 456 (1996).
{¶ 3} In Strickland the United States Supreme Court ruled that judicial scrutiny of
an attorney’s work must be highly deferential. The Court noted that it is all too tempting
for a defendant to second-guess his lawyer after conviction and that it would be all too
easy for a court, examining an unsuccessful defense in hindsight, to conclude that a
particular act or omission was deficient. Therefore, “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} Specifically, in regard to claims of ineffective assistance of appellate
counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative
to decide strategy and tactics by selecting what he thinks are the most promising
arguments out of all possible contentions. The court noted, “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, 463 U.S. 745, 751-752,
103 S.Ct. 3308,
77 L.Ed.2d 987 (1983).
Indeed, including weaker arguments might lessen the impact of the stronger ones.
Accordingly, the Court ruled that judges should not second-guess reasonable professional
judgments and impose on appellate counsel the duty to raise every “colorable” issue.
Such rules would disserve the goal of vigorous and effective advocacy. The Supreme
Court of Ohio reaffirmed these principles in State v. Allen,
77 Ohio St.3d 172,
1996-Ohio-366,
672 N.E.2d 638 and State v. Tenace,
109 Ohio St.3d 451,
2006-Ohio-2987,
849 N.E.2d 1.
{¶ 5} Moreover, even if a petitioner establishes that an error by his lawyer was
professionally unreasonable under all the circumstances of the case, the petitioner must
further establish prejudice: but for the unreasonable error there is a reasonable probability
that the results of the proceeding would have been different. A court need not determine
whether counsel’s performance was deficient before examining prejudice suffered by the
defendant as a result of alleged deficiencies.
{¶ 6} Clement’s first argument is that the trial court should have instructed on the
lesser included offenses of manslaughter and reckless homicide, especially because this
was a capital case. In State v. Bolton, 8th Dist. No. 96385, 2012-Ohio-169,
2012 WL
171039, ¶45, this court reviewed the requisites for giving a lesser included offense
charge.
A charge on a ‘lesser included offense is required only where the evidence
presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense.’ State v.
Thomas, 40 Ohio St.3d 213, 533 N.E.2d (1988), paragraph two of the
syllabus; State v. Shane, 63 Ohio St.3d 630, 632-633,
590 N.E.2d 272
(1992). Conversely, if the jury could not reasonably find against the state
on any element of the crime, then a charge on a lesser included offense is
not only not required, but improper.
Clement in his brief also admits that the evidence must support the charge on the lesser
included offense.
{¶ 7} In the present case, Clement, Dominic Rodgers, Alfred Rodgers, Demetrius
Williams, and Lavonte Green conspired to rob Gregory Williams, a marijuana dealer, of
his money and drugs. They lured Gregory to the Rodgers’s house on the pretext of
buying marijuana. Tramel Wallace drove Gregory to the house and pulled all the way
into the driveway, approximately 40 feet. Gregory was in the front passenger seat.
Clement, who had a gun, stood by the passenger side door, and Green jumped into the
back seat, pointed his gun at Gregory, and announced the robbery. Gregory grabbed
Green’s gun, jumped into the back seat, and wrestled for control of the gun. As Wallace
backed up the car, Clement ran along side the length of the driveway. When Wallace
stopped the car at the end of the driveway, Clement stuck his gun in the passenger side
window and shot Gregory in the chest, mortally wounding him.
{¶ 8} Clement’s acts of pursuing the car, sticking the gun into the window and
shooting Gregory at close range show intent and purpose inconsistent with reckless
homicide or manslaughter. The evidence did not support such charges. Thus, appellate
counsel in the exercise of professional judgment could properly conclude not to raise this
issue.
{¶ 9} During the trial, the prosecutor elicited from Alfred Rodgers that he had
pleaded guilty to manslaughter and aggravated robbery for his involvement in the
conspiracy. Defense counsel also cross-examined Alfred about his guilty plea.
Dominic Rodgers also admitted that he was guilty of accessory to manslaughter. For his
second argument, Clement asserts that the trial court should have instructed the jury that
co-defendants’s pleas of guilty or convictions could not be considered as substantive
evidence of Clement’s guilt. This court in State v. Karstone, 8th Dist. No. 95104,
2011-Ohio-1930,
2011 WL 1584116, ¶42, stated the criteria for such a charge: “the
admission of such evidence without a limiting instruction is not reversible error if defense
counsel does not request an instruction and if the evidence was introduced for a proper
purpose.” Proper purposes include impeaching the witness or showing that the state has
nothing to hide in its plea agreements.
{¶ 10} In the present case, Clement did not establish the prerequisites for giving
the instruction. A review of the transcripts shows that the guilty plea was introduced for
proper purposes and that the prosecutor did not emphasize the guilty plea or Dominic’s
conviction. Thus, Clement’s argument is not well taken.
{¶ 11} Next, Clement argues that the trial court erred in allowing him to be
convicted as an aider and abettor without any requirement that defendant possessed a
culpable mental state. This proposed assignment of error is ill-founded, because the trial
court gave a full instruction on “purpose” when giving the jury charge on aiding and
abetting.
{¶ 12} Clement’s next argument is that he was denied due process when the trial
court instructed on flight. He cites several old cases, e.g., Dillon v. State, 7 Ohio L.Abs.
46, (Ct. App. 1928), for the proposition that circumstances of flight is as consistent with
the theory of innocence as of guilt. However, this is not the current view.
“[I]t is also well established that the flight of an accused from justice is
admissible as evidence for the consciousness of guilt. … It is to-day [sic]
universally conceded that the fact of an accused’s flight, escape from
custody, resistance to arrest, concealment, assumption of a false name, and
related conduct, are admissible as evidence of consciousness of guilt, and
thus of guilt itself.’ 2 Wigmore on Evidence (3 Ed.), 111, Section 276, …
(Citations omitted.) It is reserved for the jury to determine ‘how much
weight should be given to such evidence.’ United States v. Dillon (C.A. 6
1989), 870 F.2d 1125, 1126, quoting United States v. Craig (C.A. 6, 1975),
522 F.2d 29, 32. ‘A jury instruction on flight is appropriate if there is
sufficient evidence in the record to support the charge.’ Davilla,
2004-Ohio-4448,
2004 WL 1882651, at ¶12.” State v. Jeffries,
182 Ohio
App.3d 459,
2009-Ohio-2440,
913 N.E.2d 493, ¶ 80, and State v. Taylor,
8th Dist. No. 86449, 2006-Ohio-3019,
2006 WL 1644914.
Thus, Clement’s argument is not well-founded, and appellate counsel in the exercise of
professional judgment could reject it.
{¶ 13} Next, Clement argues that his trial counsel was ineffective in various ways.
First, trial counsel should have objected to the jury instruction on aiding and abetting
because it did not include an instruction on culpable mental state. As stated earlier, this
argument is baseless because the judge did instruct on “purpose” in the aiding and
abetting charge.
{¶ 14} During the examination of the driver, Tramel Wallace, the prosecution
asked him if he could see the shooter in the courtroom today. Wallace apparently looked
at Clement, but did not say anything before defense counsel objected and moved for a
mistrial. Clement now maintains that his counsel should have requested an instruction
on identification. Following the supreme court’s admonitions, this court will not
second-guess trial counsel’s strategy and tactics on this point. Moreover, the trial court
did instruct the witness to testify to the truth which would be that he could not identify the
shooter. Thus, this argument is also not well-founded.
{¶ 15} Clement also argues that trial counsel was ineffective for not filing a motion
to suppress Dominic Rodgers’s identification of Clement. However, Clement fails to
establish prejudice. The trial judge held an extensive voir dire at trial on Dominic’s
ability to identify Clement and ruled that Dominic in fact knew Clement because there
was a relationship between them. During this voir dire the trial judge elicited that
Dominic had seen Clement before the day of the robbery and that he was related to
Dominic’s sister’s boyfriend. Thus, the judge allowed Dominic to identify Clement.
There is no reason to believe that moving to suppress the identification before trial would
have changed the judge’s ruling.
{¶ 16} Count I charged Clement with aggravated murder under R.C. 2903.01(A)
that he purposely and with prior calculation and design caused the death of another.
Count II charged him with aggravated murder under R.C. 2903.01(B) that he purposely
caused the death of another while committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit aggravated robbery. The jury
found him not guilty of aggravated murder under Count I, but guilty of the lesser included
offense of murder under Count I. The jury also found him guilty of aggravated murder
under Count II. The trial judge merged the murder count, the two aggravated robbery
counts, and the kidnapping count concerning Gregory into Count II, and sentenced
Clement to life imprisonment with parole eligibility after 30 years. Clement now argues
that the jury verdicts for murder and aggravated murder are inherently inconsistent, and
he should have been sentenced only on the murder conviction.
“[I]n criminal cases, consistency between verdicts on several counts of an
indictment is unnecessary where the defendant is convicted on one or some
counts, and acquitted on others, and the conviction will generally be upheld,
irrespective of its rational incompatibility with the acquittal.’ State v.
Sailor, 8th Dist. No. 83552, 2004-Ohio-5207,
2004 WL 2340113, ¶ 88,
citing State v. Woodson, 24 Ohio App.3d 143,
493 N.E.2d 1018 (10th Dist.
1985).” State v. Bolton, 8th Dist. No. 96385, 2012-Ohio-169,
2012 WL
1717039, ¶74.
Also the evidence supports the finding that Clement purposely killed Gregory during a
robbery or attempted robbery. It is also understandable how on these facts a jury might
conclude that the state had not proven the element of prior calculation and design beyond
a reasonable doubt. Appellate counsel in the exercise of professional judgment could
decline to raise this issue.
{¶ 17} Finally, Clement argues that the trial court erred in not granting a mistrial
because there was a blatant discovery violation. Clement asserts that his defense
counsel had been told that Tramel Wallace was unable to make an identification.
However, it appears that the prosecution was going to have him make an identification,
and defense counsel had not been provided with discovery in that regard. Clement does
not establish prejudice for the failure to make discovery. Defense counsel was able to
timely object and prevent Wallace from identifying Clement as the shooter.
{¶ 18} Accordingly, this court denies the application to reopen.
FRANK D. CELEBREZZE, JR., J.
MARY EILEEN KILBANE, P.J., AND
JAMES J. SWEENEY, J., CONCUR
