[Cite as State v. Clark,
2017-Ohio-178.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103324
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MOSES CLARK
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-15-592368-A
Application for Reopening
Motion No. 500207
RELEASE DATE: January 18, 2017
FOR APPELLANT
Moses Clark, pro se
Inmate No. A671-842
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Maxwell Martin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Moses Clark has filed an application for reopening pursuant to App.R. 26(B).
Clark is attempting to reopen the appellate judgment rendered in State v. Clark, 8th Dist.
Cuyahoga No. 103324, 2016-Ohio-4561, that affirmed his conviction and sentence for
three counts of rape and three counts of kidnapping. We decline to reopen Clark’s
appeal.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel,
Clark is required to establish that the performance of his appellate counsel was deficient
and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688,
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 767 (1990).
{¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of
an attorney’s work must be highly deferential. The court further stated that it is all too
tempting for a defendant to second-guess his attorney after conviction and that it would
be too easy for a court to conclude that a specific act or omission was deficient, especially
when examining the matter in hindsight. Thus, 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.
{¶4} Clark raises one proposed assignment of error in support of his application
for reopening. Clark’s sole proposed assignment of error is that:
The appellant was denied effective assistance of appellate counsel on his
first appeal as of right when he failed to properly raise his constitutional
right to the confrontation clause.
{¶5} Clark, through his assignment of error, argues that his right to confront the
victim was violated because she was deceased at the time of trial. Specifically, Clark
argues that the trial court erred by admitting into evidence the statements made by the
deceased victim to a police officer and further erred by allowing the narrative from the
victim’s medical records into evidence.
{¶6} The issues raised through Clark’s sole proposed assignment of error, the
admission into evidence of the deceased victim’s statements and the deceased victim’s
medical records, were previously addressed upon direct appeal to this court and found to
be without merit. With regard to the issue that the trial court erred in admitting into
evidence the statements of the deceased victim, this court in State v. Clark, supra, held
that:
In the second assignment of error, Clark argues that the trial court erred in
admitting statements that [the victim] made to Officer Gray. During trial,
Officer Gray testified that he was one of the police officers who first
arrived on scene to Ann Washington’s house, responding to a call that a
female had just been raped. When he arrived, he found [the victim] slumped
over in a chair, upset and crying. At this point in Officer Gray’s testimony,
defense counsel objected, but the trial court overruled the objection. Officer
Gray testified that [the victim] told him that she was riding the RTA bus
with a friend but decided to get off because a man was bothering her. The
man also got off the bus, followed her, and pulled out a gun on her.
Defense counsel objected again at this point, and the trial court expressed
its concern that the state had not laid the proper foundation for admission of
[the victim’s] statement as an excited utterance exception to hearsay.
Defense counsel argued the [the victim’s] statements were not excited
utterances and admission of her statements would violate Clark’s right to
confront witness within the meaning of Crawford v. Washington, 541 U.S.
36,
124 S.Ct. 1354,
158 L.Ed.2d 177 (2004). The trial court determined
that [the victim’s] statements were indeed excited utterance and did not
violate Crawford because the officer’s questioning was designed to address
the emergency at hand.
…
Officer Gray testified that [the victim]’s statements to him were made as
soon as he responded to the scene and within ten minutes of when the 911
call came into dispatch. Officer Gray and Washington each testified that
[the victim] was crying and upset throughout the interview; Officer Gray
testified that Washington had her open hand on [the victim]’s back trying to
comfort and calm her. Under these facts, the trial court did not abuse its
discretion in finding that [the victim]’s statements to Officer Gray fell
within the “excited utterances” exception to the hearsay rule.
Clark at ¶ 30 - 32, 35.
{¶7} In addition, with regard to the right of confrontation, this court held that:
Next, we determine whether Clark’s right of confrontation was
violated.
…
In Davis v. Washington, 547 U.S. 813,
126 S.Ct. 2266,
165 L.Ed.2d
224 (2006), the United States Supreme Court found the statements
made with the “primary purpose” of enabling police to meet and
“ongoing” emergency are not testimonial. Id. at 826.
…
Under these circumstances, [the victim’s] primary purpose in
talking to the police officer was to receive assistance from
him and the police officer’s primary purpose was to assist [the
victim]. Even though [the victim’s] statements to Officer
Gray may be later used in court, it cannot be said that Officer
Gray was seeking to develop [the victim’s] testimony about
past events for a criminal proceeding. See State v. Goshade,
1st Dist. Hamilton No. C-120586, 2013-Ohio-4457, ¶ 17.
Therefore, considering the totality of the circumstances, we
find that [the victim]’s statements were not testimonial and,
therefore, the trial court did not err in allowing those
statements into evidence under the excited utterance
exception to the hearsay rule.
…
Clark at ¶36, 38 - 41.
{¶8} Finally, with regard to the admission into evidence of [the victim’s]
medical records, this court held that:
In the third assignment of error, Clark argues that the trial
court
erred when it allowed the narrative from [the victim]’s
medical records into evidence.
…
As with [the victim], the victim in [State v. Echols, 8th
Dist. Cuyahoga No. 102504, 2015-Ohio-5138], died
before trial. The [the victim]’s treating physician read a
lengthy narrative into the record that included what she
was doing before she was attacked and detailed
circumstances of the attack. In this case, [nurse]
Reali-Sorrell testified that it was important to collect
information about the assault to understand what
happened to [the victim], what her injuries might be,
and to know how to treat her. Clark fails to point to
any evidence, and we found none in our review of
[nurse] Reali-Sorrell’s testimony, that shows that the
nurse was collecting the information primarily to be
used in later criminal proceedings. Thus, the trial
court did not commit plain error when it allowed the
nurse’s testimony with regard to [the victim]’s medical
records into evidence pursuant to Evid.R. 803(4).
In light of the above, we find that Clark’s Sixth
Amendment rights were not violated by Officer Gray’s
or nurse Reali-Sorrell’s testimony and the trial court
did not abuse its discretion in allowing the testimony
into evidence.
The second and third assignments of error are
overruled.
Clark at ¶ 42, 46 - 49.
{¶9} Clark’s claim, that his right to confrontation under the Sixth
Amendment was violated by the trial court admitting the statements of the
deceased victim and further allowing the narrative from the victim’s
medical records admitted into evidence, is barred from further review by the
doctrine of res judicata. The issues presently raised in support of his sole
proposed assignment of error were previously determined to be without
merit in Clark, supra. Clark is not permitted to relitigate issues that were
previously raised on appeal and found to be without merit. Ashe v.
Swenson,
397 U.S. 436,
90 S.Ct. 1189,
25 L.Ed.2d 469 (1970); State v.
Crago,
93 Ohio App.3d 621,
639 N.E.2d 801 (10th Dist.1994); State v.
Williamson, 8th Dist. Cuyahoga No. 102320,
2015-Ohio-4482; State v. Day,
8th Dist. Cuyahoga No. 67767,
1995 Ohio App. LEXIS 4847 (Nov. 2,
1995). Clark has failed to establish any prejudice through his sole
proposed assignment of error.
{¶10} Finally, we find that Clark has failed to comply with App.R. 26(B)(2)(d),
which mandates that the applicant must attach to the application for reopening “a sworn
statement of the basis for the claim that appellate counsel’s representation was deficient.”
State v. Doles, 75 Ohio St.3d 604,
665 N.E.2d 197 (1996); State v. Lechner,
72 Ohio
St.3d 374,
650 N.E.2d 449 (1995); State v. Bates, 8th Dist. Cuyahoga Nos. 97631, 97632,
97633, and 97634,
2015-Ohio-4176.
{¶11} Accordingly, the application for reopening is denied.
LARRY A. JONES, SR., PRESIDING JUDGE
MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
