[Cite as State v. Dye,
2021-Ohio-207.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109366
v. :
JAMAL DYE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 28, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-594386-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellee.
Allen Bloom, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant, Jamal Dye (“Dye”), appeals from the trial
court’s decision denying his first amended petition for postconviction relief as moot
and denying his second amended petition for postconviction relief as untimely. For
the reasons set forth below, we affirm.
I. Introduction
On March 12, 2015, Dye was arrested in connection with the killing of
James Gray (“Gray”). On March 24, 2015, a Cuyahoga County grand jury returned
a five-count indictment against Dye that included: Count 1, aggravated murder, a
first-degree felony pursuant to R.C. 2903.01(A); Count 2, murder, a first-degree
felony pursuant to R.C. 2903.02(A); Count 3, felonious assault, a third-degree felony
pursuant to R.C. 2903.11(A)(1); Count 4, discharge of firearm on or near prohibited
premises, a first-degree misdemeanor pursuant to R.C. 2923.162(A)(3); and Count
5, carrying concealed weapons, a first-degree misdemeanor pursuant to R.C.
2923.12(A)(2). Counts 1 through 4 included firearm specifications pursuant to R.C.
2941.141(A) and 2941.145(A).
A jury trial commenced on November 30, 2015. On December 10,
2015, Dye was acquitted of aggravated murder (Count 1) and discharge of firearm
(Count 4); Dye was found guilty of murder (Count 2), felonious assault (Count 3),
and carrying concealed weapons (Count 5). The trial court sentenced Dye to life in
prison with parole eligibility after 18 years.
A. Dye’s Direct Appeal
Dye filed a direct appeal to this court presenting six assignments of
error challenging his convictions. This court affirmed his conviction on December
8, 2016. State v. Dye, 8th Dist. Cuyahoga No. 103907, 2016-Ohio-8044. Dye then
appealed to the Ohio Supreme Court, which declined to accept jurisdiction. State v.
Dye,
150 Ohio St. 3d 1442,
2017-Ohio-7843,
82 N.E.3d 1175.
B. Postconviction Petitions
Dye then petitioned the trial court for postconviction relief, which the
trial court denied without a hearing. The trial court did not find Dye’s arguments to
be persuasive or his presented affidavits to be credible. Therefore, the court did not
find a hearing was necessary and denied the petition.
Dye was required to submit his petition for postconviction relief 365
days after submitting the trial transcript to this court for his direct appeal. See
2953.21(A)(2). Dye filed the transcript on February 25, 2016. Dye filed his petition
for postconviction relief on February 24, 2017, making it timely. That petition
included four claims for relief. Dye went on to submit a second amended petition
for postconviction relief, which introduced a fifth claim for relief. That second
amended petition was untimely because it was submitted on May 5, 2019, well after
the deadline.
Nevertheless, the trial court gave all five of Dye’s claims a full and fair
review. The court did not find Dye’s claims to be credible and determined that they
did not warrant a hearing and did not warrant postconviction relief. We do not find
that the court abused its discretion in making that decision.
II. Factual Background
The facts of the shooting were previously set forth by this court in
Dye’s direct appeal, State v. Dye, 8th Dist. Cuyahoga No. 103907, 2016-Ohio-8044.
We incorporate the relevant facts:
[¶ 1] Jamal Dye appeals from a judgment of the Cuyahoga County
Court of Common Pleas that convicted him of murder and additional
related offenses following a jury trial. Having reviewed the record and
applicable law, we affirm his convictions.
[¶ 2] On March 8, 2015, James Gray held a party at his house on Linnet
Avenue near West 105th Street in Cleveland. The partygoers consumed
alcohol and used drugs into midnight. All night long, tension brewed
between appellant Jamal Dye, 20, and James Gray, 25. The tension
culminated in the shooting death of Gray (“victim”) by Dye
(“appellant”) around 3:30 a.m.
[¶ 3] During the ten-day trial, the state presented 19 witnesses. Seven
individuals who attended the party that night testified, six for the state
and one for the defense. Appellant also took the stand. He claimed he
shot the victim in self-defense. The jury also viewed the house where
the shooting took place.
[¶ 4] After a lengthy jury trial, the jury acquitted appellant of
aggravated murder but found him guilty of murder. The jury also found
him guilty of felonious assault and carrying a concealed weapon. The
trial court sentenced appellant to 18 years to life.
A. Testimony by the State’s Witnesses
[¶ 5] Of the state’s witnesses who were at the party that night, most of
them did not witness the shooting but testified to the conflict between
appellant and the victim that precipitated the shooting. These
witnesses’ accounts of how the events of the evening unfolded varied in
details and were not entirely consistent with each other. There was,
however, one eyewitness to the shooting, Elizabeth Torres, and she
testified for the state as well.
Testimony of Partygoers who Did Not Witness the Shooting
[¶ 6] Harold Williams, a friend of the victim, testified that tension
arose between appellant and the victim on the night of the incident over
Williams’s ex-girlfriend Idrijana Vajusi. When Vajusi arrived with her
friend Monica Correa, Williams was not happy to see Vajusi at the
party. He asked her to leave but she would not. Williams and Correa
then went upstairs to engage in sex. Later, Williams told appellant
about his sexual encounter with Correa and encouraged appellant to
engage in sex with Vajusi as well as to take Vajusi away from the party.
Appellant then left the party with the two women. Williams later called
Vajusi on her phone but appellant answered the phone. Appellant told
Williams to stop calling because he was “[trying to have sex]” and hung
up the phone. Feeling disrespected, Williams called appellant back on
Vajusi’s phone again and Vajusi answered the phone. The two started
to argue. Appellant got on the phone. Williams told appellant not to
bring Vajusi back to the party and handed his phone to the victim.
Appellant then argued with the victim, who was visibly angry. Despite
Williams’s request, appellant returned to the victim’s house with the
two women. The tension between appellant and the victim escalated.
The victim asked appellant to leave, but appellant refused. The victim
then challenged appellant to a fight in the basement. At that point,
appellant left but hinted that he would return soon.
[¶ 7] Moments after, Williams heard gunshots erupting outside. He
rushed to the side door trying to lock the door. Appellant used a black
pistol to block the door from closing — Williams identified the gun as
the same gun shown in the state’s exhibit Nos. 177 and 178,
photographs of appellant holding a gun on a prior occasion. Another
partygoer and the victim’s cousin, Mario Cargill, and appellant then
struggled over the gun in the kitchen area. Both Cargill and appellant
fell into a window. According to Williams, while appellant and Cargill
struggled over the gun, the victim went upstairs to retrieve a shotgun,
in an attempt to “calm” the situation.
[¶ 8] After both Cargill and appellant fell into the widow, Cargill
wrestled appellant to the ground, while appellant still held the pistol in
his hand. Either the victim or another individual by the nickname of
“Tone” then ran in and kicked the pistol out of appellant’s hand.
Williams then ran out of the house to get away from the scuffle. While
hiding, he heard gunshots 30 feet away. According to Cargill, who also
testified, Williams grabbed the gun and took it with him when he ran
out of the house.
…
[¶ 11] Mario Cargill, the victim’s cousin, also testified about the events
leading to the shooting. He testified that there had been past conflict
between appellant and the victim. When he arrived at the party, the
victim told him to be prepared for a fight between the victim and
appellant. When appellant arrived with Vajusi and Correa, he acted
disrespectfully by entering the house through the front door, brushing
past Cargill’s girlfriend Elizabeth Torres, which caused an argument
between Cargill and appellant. At the request of Torres, the argument
de-escalated. Later, Cargill saw appellant and victim in a heated
argument and one of appellant’s friends handed appellant a silver gun.
According to Cargill, Cargill helped de-escalate the conflict at this time.
Appellant and the victim then headed to the front porch, and the victim
challenged appellant to a fight in the basement. Appellant and the
victim returned to the house without a fight.
[¶ 12] Cargill then went into a bedroom with his girlfriend Elizabeth
Torres and their baby. Thirty to forty minutes later, he heard the noises
of a scuffle coming from the kitchen area. He went to the kitchen and
saw appellant and the victim struggling with each other against the
window over a gun appellant was holding. It was not the silver gun he
saw someone handing to appellant earlier, but a “Tec-9,” a type of gun
with which he was familiar. To stop the trigger from being pulled,
Cargill grabbed the gun from appellant, but dropped it when the
victim’s dog came up and bit Cargill on the leg. At this point, Harold
Williams picked up the gun and ran outside with the gun, while
appellant and the victim continued to fight. Cargill went into a
bathroom to check on his dog bite. While in the bathroom, he heard a
gunshot. He rushed to the kitchen to find the victim lying on the
ground. He then heard two or three gunshots coming from the outside.
Cargill ran outside and jumped into his truck to look for appellant. He
found appellant walking down the street holding the silver gun he had
seen on the earlier occasion. Cargill pulled his truck in front of
appellant, and the two fought with each other. Cargill asked appellant,
“why did you kill my cousin?” Appellant put the gun to Cargill’s head
and said, “I’ll kill you too.” As the two struggled, they were pulled apart
by others. Cargill returned to the house and was met by the police.
Joseph Kapostasy, a neighbor, witnessed the struggle between
appellant and Cargill in the street.
B. Eyewitness Testimony
[¶ 13] While the other witnesses were only able to testify to the
confrontations between appellant and the victim leading to the
eventual shooting, Cargill’s girlfriend Elizabeth Torres witnessed the
shooting. Also, unlike the other witnesses, Torres testified she did not
consume any alcohol or use any drugs that night. She provided the
following eyewitness account.
[¶ 14] Torres testified that, on the day of the incident, she and her baby
were in the victim’s home to spend time with Cargill, the baby’s father.
While in a first-floor bedroom with Cargill and the baby, she heard
gunshots erupting outside the house. Cargill left to find out what was
going on. When Torres heard a second round of gunshots, Torres
herself went outside to find out what was taking place. She saw
appellant, the victim, and Cargill were all outside: the victim was
holding a shotgun, and appellant was shooting a black gun in the air.
All three men then ran back to the house. The victim went through the
front door; appellant went through the side door; and Cargill ran
toward the back of the house. Still outside the house herself, Torres
then saw, through the front door, appellant shooting the victim as the
victim walked into the kitchen. The victim fell to the floor. Torres did
not observe any struggle between the two men prior to the shooting.
…
C. Defense
[¶ 18] The defense called Andre Barnes, a friend of appellant who was
at the party that night. Barnes testified he never saw appellant with a
weapon that night. He heard a commotion coming from the first floor
while he was in the basement. He went upstairs and saw appellant on
the ground surrounded by people who appeared to be stomping him;
he got scared and ran from the house.
[¶ 19] Appellant took the stand and testified in his own defense. He
gave a drastically different account of how the shooting occurred. He
admitted he was drinking and smoking marijuana on the night of the
incident. He also admitted shooting the victim, but claimed he acted in
self-defense.
[¶ 20] Appellant testified that he left the victim’s house party with the
two women, Vajusi and Correa. When they returned to the party, he
was approached by Harold Williams, who was unhappy he brought
Vajusi back. “Tone” approached him as well, and they got into an
argument. Someone then tackled him, and he fell on the ground in the
kitchen. Several people were kicking and stomping him, and going
through his pockets. When he got up, Cargill and the victim “had guns
in [his] face.” Cargill was holding a shotgun; and the victim was
holding a handgun. He held his hands up, saying “don’t shoot me.” His
friend “Adam” then came into the kitchen and tackled Cargill.
Appellant then went for the victim’s gun and grabbed it. The two fought
over the gun, and he “got the better and push[ed] off” the gun. The gun
went off, and the victim was shot. When asked why he shot the victim,
appellant testified that he was scared for his life. After he shot the
victim, he dropped the gun and ran from the house. As he ran down
the street to his car, he felt bullets flying past him, and Cargill was in
his truck trying to run him over. Appellant quickly got into his own car
and drove off.
In addition to the testimony of those involved, the state also
presented evidence of Dye’s familiarity with guns, including three photographs of
Dye holding a “TEC-9” semiautomatic pistol, the same type of gun used to kill Gray.
Dye initially stated that the pictures were taken months before the March 8, 2015
shooting and had no bearing on the incident, but metadata established the
photographs were taken on August 8, 2014, December 28, 2014, and February 15,
2015, respectively.
On cross-examination, Dye also stated that no guns had been found
in his house. The state presented evidence that the Cleveland police department had
seized two guns from his room in June 2014. Dye was never charged for possession
of these weapons, but he was aware that the weapons had been seized from his room.
All these facts were before this court on Dye’s direct appeal. Dye
presented six assignments of error. The majority of Dye’s appeal concerned the
introduction of evidence by his counsel, the trial court’s decision to allow certain
other evidence in over objection, and the inclusion of certain jurors. After careful
review, we affirmed the decisions of the trial court. See Dye, 8th Dist. Cuyahoga No.
103907, 2016-Ohio-8044.
III. Dye’s Petitions for Postconviction Relief
His conviction having been affirmed on appeal, Dye filed a petition
for postconviction relief on February 24, 2017, raising four grounds for relief:
Petitioner failed to receive adequate representation when the key
eyewitness testimony of witness Lisa Kinney was not presented to the
jury.
Petitioner failed to receive adequate representation when the key
eyewitness testimony of witness John Bella was not presented to the
jury.
Petitioner failed to receive adequate representation when the key
eyewitness testimony of witness Lewis Richardson was not presented
to the jury.
Petitioner failed to receive adequate representation when trial counsel
failed to present evidence establishing that Jamal Dye was correct
when he said that he never owned any guns in his house.
Dye filed an amended first petition for postconviction relief on
February 25, 2017, raising the same grounds for relief. In his amended petition, Dye
included a declaration from Robert Slattery — his current counsel’s investigator —
regarding Lisa Kinney and Lewis Richardson, two of the three eyewitnesses Dye
claims should have testified at his trial.
Inexplicably, the state did not respond for over a year; on July 16,
2018, the state filed a motion for leave to file a brief in opposition, which was
granted. The state argued that the three individuals Dye represents as eyewitnesses
— Kinney, Bella, and Richardson — were friends of his and lacked credibility. The
state also argued that the eyewitness testimony of Elizabeth Torres presented at trial
disputes the statements and affidavits of the three eyewitnesses.
On July 31, 2018, Dye filed a motion for leave to file a reply brief with
an attached reply. Dye argued in response that Torres’s testimony actually
corroborates the testimony of his new eyewitnesses and his own testimony.
On May 5, 2019, more than two years after the deadline to file a
petition for postconviction relief, Dye filed a motion for leave to file a second
amended petition for postconviction relief, with an attached second amended
petition. Dye included five additional exhibits and raised a fifth ground for relief, he
claimed he was denied effective assistance of counsel based on a conflict of interest
held by his trial counsel.
Dye incorporated his first amended petition for postconviction relief
into this new amended petition. In the course of presenting his five claims for relief,
Dye presented the following affidavit testimony that was not presented to the jury.
A. Affidavit Testimony of Lisa Kinney
Dye claimed ineffective assistance of counsel because Lisa Kinney did
not testify at trial. Trial counsel’s investigator located Kinney, who was a friend of
Dye’s family. Kinney was at the party the night of the shooting, but the 48-year-old
did not participate in the partying and was planning on leaving because she quickly
realized that this party was for a younger crowd. However, before she left, the
shooting occurred.
Kinney avers that she saw three men, two of them armed, beat and
rob Dye in the kitchen. She saw Dye struggle to his feet and wrestle with Gray for
his handgun. She heard the gun go off and saw Gray fall to the floor.
B. Affidavit Testimony of Jonathan Bella
Dye also claimed ineffective assistance of counsel because Bella did
not testify at trial. Bella was a longtime friend of both Dye and Gray. Bella allegedly
saw Dye and Gray arguing about a girl and saw Gray strike Dye in the face. Bella,
like Kinney, also allegedly saw Gray and two others beat and rob Dye in the kitchen.
One individual was pointing a shotgun at Dye, but before he could fire, another
partygoer tackled the individual with the shotgun. At that point, Dye struggled to
his feet and grappled with Gray for the handgun. Bella heard a shot and saw Gray
fall to the ground.
Bella stated that he contacted trial counsel after the shooting and
asked him to represent Dye. Bella avers that he did not tell Dye he saw the shooting
until years later, but avers that he did tell trial counsel he was an eyewitness when
he first contacted trial counsel. He avers that he told trial counsel that he did not
want to testify because he was on probation and had violated his probation
conditions by attending the party. Trial counsel has consistently stated that Bella
never told him that he was an eyewitness.
C. Affidavit Testimony of Lewis Richardson
Along with the absent testimony of Kinney and Bella, Dye claims
ineffective assistance of counsel because Lewis Richardson, a friend of Dye’s, did not
testify at trial. Richardson also avers that he saw Dye get beaten and robbed by Gray
and his two friends. He also allegedly saw Dye struggle to his feet and grapple for
the handgun with Gray. Richardson heard the gun go off and saw Gray fall to the
ground.
D. Evidence that Dye did not Own Guns
Dye also alleges that trial counsel was ineffective because he knew
there were witnesses that could have established the guns taken from Dye’s room
did not belong to him. Dye’s mother stated that, a few days before the guns were
seized around June 2014, she let Dye’s friend Shawn Williams (“Williams”), into
Dye’s room. A few days later Williams was arrested and, to assist in his own case,
told police that there were guns in Dye’s room.
Police later arrived at the house with a limited search warrant only for
Dye’s bedroom, went to Dye’s room, and immediately retrieved the guns. Dye was
never charged or prosecuted for ownership or possession of the guns.
Dye alleges that trial counsel was blindsided by this information at
trial and that his failure to prepare for this line of questioning and prove that it was
false prejudiced Dye.
E. Conflict of Interest
In his fifth ground for postconviction, Dye claims he was prejudiced
by a conflict of interest between his trial counsel and Bella. Prior to Dye’s
indictment, trial counsel represented Bella in a criminal case. Bella was placed on
probation with conditions, one of which was that he not use any drugs.
When Dye was arrested, Bella introduced trial counsel to Dye. At that
time, Bella avers that he told trial counsel he had been at the party, witnessed the
confrontation, and that Dye was acting in self-defense. Bella avers that he then told
trial counsel he did not want to testify. Bella also avers that he did not tell Dye he
was a witness to the shooting at that time.
Dye argues that counsel made the decision not to put Bella on the
stand. He argues that trial counsel knew, or should have known, that this created a
clear conflict that prejudiced Dye.
Dye avers that he learned in February 2019 that Bella had actually
witnessed the shooting and had been on probation at the time. Previously, Dye avers
that he had only been aware that Bella had attended the party.
Current counsel interviewed trial counsel in March and April 2019.
Trial counsel stated that Bella had not told him about being an eyewitness.
However, Dye’s mother averred that during her initial conversation with trial
counsel, trial counsel told her he already knew about Dye’s claims of self-defense
after speaking with Bella. Dye’s mother does not aver that trial counsel told her he
knew Bella was an eyewitness, just that he knew about the self-defense claim.
F. Trial Court Denied Postconviction Relief
The trial court reviewed all the affidavits submitted even though Dye’s
second amended petition for postconviction relief was untimely. On December 12,
2019, the trial court denied Dye’s second amended petition for postconviction relief
and issued findings of fact and conclusions of law. The first petition for
postconviction relief and amended first petition were denied as moot. All the claims
for relief from the first petition were incorporated in the second amended petition
for postconviction relief and the trial court fully reviewed those claims. The court
found that Dye’s arguments were not credible and that he had the opportunity to
raise these arguments previously and failed to do so, so they were barred by res
judicata.
Dye now appeals the denial of his petition for postconviction relief
and provides three assignments of error for our review.
IV. Assignments of Error
First Assignment of Error
The trial court erred when it denied Appellant’s petition for post-conviction relief which asserted that trial counsel was inadequate for
the cumulative failure of presenting (A) the testimony of three critical
eyewitnesses to the shooting AND further failing to present (B)
testimony and evidence to support Appellant’s testimony and position
at trial that he was NOT and NEVER was the owner of the weapons that
were introduced by the prosecution, over defense objection.
Second Assignment of Error
The trial court erred when it denied Appellant’s petition for post-conviction relief which asserted that trial counsel was inadequate in
that he was conflicted in representing Appellant where he also
represented Jonathan Bella, a critical eye witness, who had an interest
adverse to Appellant.
Third Assignment of Error
The trial court’s conclusion of law that the [second] amended petition
for post-conviction relief was untimely is flawed — all five of the
grounds raised in the [second] amended petition for post-conviction
relief are properly before this court.
V. Analysis
A. Standard of Review
We review decisions denying postconviction relief without a hearing
for an abuse of discretion. State v. Abdussatar, 8th Dist. Cuyahoga No. 92439,
2009-Ohio-5232, ¶ 16. “The term abuse of discretion connotes more than an error
of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140
(1983).
VI. Summary
We do not find an abuse of discretion. Dye was required to submit
his petition for postconviction relief 365 days after submitting the trial transcript to
this court for his direct appeal. See R.C. 2953.21(A)(2). Dye filed the transcript on
February 25, 2016. Dye filed his first petition for postconviction relief on February
24, 2017, making it timely. That petition included four claims for relief. Dye went
on to submit a second amended petition for postconviction relief, which introduced
a fifth claim for relief. The second amended petition was untimely because it was
submitted on May 5, 2019, well after the deadline.
Nevertheless, even if the second amended petition was timely, the
trial court gave all five of Dye’s claims a full and fair review. The court did not find
Dye’s claims to be credible and determined that they did not warrant a hearing and
did not warrant postconviction relief. We do not find that the court abused its
discretion in making that decision. We address each assignment of error in turn
below.
A. First Assignment of Error
Dye’s first assignment of error concerns his first four grounds for
relief presented in his first, timely petition for postconviction relief. He alleges that
his counsel was ineffective for failing to present the testimony of Kinney, Bella, and
Richardson. He also claims that counsel was ineffective for failing to present
evidence that Dye was not the owner of the weapons found in his room. The trial
court found that Dye did not meet his high burden to prove ineffective assistance of
counsel. After careful review, we find that the trial court did not abuse its discretion
in making this determination.
In order to be entitled to a hearing on a petition for postconviction
relief alleging ineffective assistance of counsel, the petitioner must submit
evidentiary documents containing sufficient operative facts to demonstrate the lack
of competent counsel and that the defense was prejudiced by counsel’s
ineffectiveness. State v. Jackson, 64 Ohio St.2d 107,
413 N.E.2d 819 (1980),
syllabus. See also State v. Cole,
2 Ohio St.3d 112, 114,
443 N.E.2d 169 (1982)
(“[w]here ineffective assistance of counsel is alleged in a petition for postconviction
relief, the defendant, in order to secure a hearing on his petition, must proffer
evidence which, if believed, would establish not only that his trial counsel had
substantially violated at least one of a defense attorney’s essential duties to his client
but also that said violation was prejudicial to the defendant.”) If a petitioner fails to
meet this burden, the trial court may dismiss the petition for postconviction relief
without a hearing.
Jackson at 111.
A postconviction petitioner who asserts a claim of ineffective
assistance bears the initial burden of submitting evidentiary documents containing
sufficient operative facts to demonstrate “that his attorney seriously erred and that
the deficient performance actually prejudiced him.” State v. Theis, 8th Dist.
Cuyahoga No. 82161, 2003-Ohio-1968, ¶ 10, citing Strickland v. Washington,
466
U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); Jackson at syllabus. In order to
satisfy the prejudice requirement, “the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would be different.”
Strickland at 694. The court found that Dye did
not show that counsel erred, and that even if counsel had erred, Dye was not
prejudiced.
1. Failure to Call Kinney, Bella, and Richardson
The decision to call witnesses is a trial strategy decision. See State v.
Oliver, 101 Ohio App. 3d 587,
656 N.E.2d 348 (8th Dist.1995). Even when a strategic
decision is questionable, we will generally refrain from second-guessing trial
counsel’s decisions. State v. Quinones, 8th Dist. Cuyahoga No. 104016, 2016-Ohio-
7225, ¶ 25. We will not second-guess trial counsel here.
2. Lisa Kinney
According to Dye, an investigator for trial counsel interviewed Kinney
and trial counsel declined to put her on the stand. Kinney was a family friend of
Dye’s and it is possible that her story contradicted Dye’s own or that counsel did not
believe the jury would find her to be credible. Kinney testified she saw three men
beating and robbing Dye before the shooting. Yet photo evidence at trial showed
that Dye only had a scrape to his calf and a swollen pinky finger. It is possible trial
counsel determined that this evidence was inconsistent with Kinney’s testimony that
she saw Dye being stomped on and aggressively robbed.
Regardless, counsel was aware of Kinney and declined to have her
testify. We will not second-guess trial counsel and therefore do not find that counsel
was deficient as to his decision regarding Kinney.
3. Jonathan Bella
Dye is also alleging that counsel failed to identify Bella as an
eyewitness and that his testimony would have bolstered his self-defense argument.
Essentially, he argues that counsel failed to adequately investigate. We find that
counsel did not err by failing to identify Bella as an eyewitness, and even if we did
find error, the trial would not have been different if Bella had testified.
We give defense counsel the benefit of the doubt in matters of trial
strategy and a failure to investigate does not automatically mean that counsel was
ineffective. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d
674 (1984) (“In any ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.”).
Here, counsel did investigate Dye’s case thoroughly and therefore met
his duty of making a reasonable investigation. There were over 40 individuals who
attended the party. Bella was not listed in any police reports as having attended. As
we stated previously, Bella asked trial counsel to represent Dye, but according to
trial counsel, Bella never shared that he was at the party, much less that he had
testimony supporting Dye’s claims of self-defense. Counsel can hardly be deficient
for failing to identify Bella when Bella himself was not forthcoming. Thus, we find
that counsel sufficiently investigated and did not err in failing to identify Bella as an
eyewitness.
4. Lewis Richardson
Similar to his claims about Bella, Dye argues that trial counsel was
ineffective for failing to identify Richardson as a witness and that he was prejudiced
as a result. We find no merit to this claim.
Dye alleges that his current investigator was able to identify
Richardson as a valuable witness and secure helpful testimony from him years after
the incident, suggesting that trial counsel was ineffectual in his own investigations.
However, we cannot fault trial counsel for not identifying Richardson when
Richardson does not appear in any witness accounts or reports of any kind as having
attended the party. We are cognizant of the difficulty trial counsel faced in
identifying and interviewing over 40 attendees, many of whom, it appears, did not
want to be identified as having attended a party where many attendees were using
drugs. If Dye were aware Richardson had attended at the time, he apparently did
not share that fact with trial counsel.
Of course, trial counsel did investigate and interview some
partygoers. Trial counsel put Andre Barnes on the stand. Barnes was a partygoer
who admitted to being friends with Dye. He stated that he saw Dye being knocked
to the ground, stomped on, and robbed prior to the shooting. Unlike Richardson,
Barnes does not claim to have seen the shooting as he ran from the scene. While
testimony regarding the shooting is critical, even if we found counsel deficient for
not tracking down Richardson, the jury apparently did not believe that Dye had been
beaten and robbed moments prior to the shooting. Even if Richardson had testified
that he had seen Dye being robbed and that he saw Dye and Gray wrestling for the
gun, there is nothing that indicates the jury would have believed that testimony.
Rather, as we found in Dye’s direct appeal, the jury was convinced by
the testimony of Elizabeth Torres. Torres was not intoxicated, unlike Richardson or
Bella, and she states that she did not see Dye being beaten and robbed. Instead, she
testified that she saw Dye standing in the kitchen and then shooting Gray as Gray
entered the kitchen. The jury relied on her testimony over Barnes, who claimed that
he saw Dye being beaten and robbed. Richardson may have bolstered Barnes’s
testimony, but he would not have added anything to the defense’s argument for self-
defense in light of Torres’s testimony.
Accordingly, we find that trial counsel did not err by not identifying
Richardson as a witness, and that even if counsel had erred, there was no prejudice
to Dye such that the outcome of the trial would have been different.
5. Evidence of Gun Ownership
Dye also claims ineffective assistance of counsel because trial counsel
failed to present evidence that Dye did not own the guns police found in his room
after the shooting. Dye argues that testimony from his mother could have provided
an explanation for how guns were found in his room. Dye’s mother avers that Dye’s
friend, Williams, asked to check Dye’s room for items he had left there in June 2014.
Then, days later, Williams was arrested. Following William’s arrest, police searched
Dye’s room with a warrant and found two weapons. Dye was never charged for
possession of the guns.
Dye was cross-examined by the state on the presence of the guns in
his room. During cross-examination, Dye stated that, among other things, it was
possible Williams had placed the guns in his room. The court did not find Dye was
prejudiced by trial counsel’s failure to present this information. We agree.
Dye was not truthful when he said guns were never found in his home;
even if the guns were not his, he knew guns were found in his bedroom. Moreover,
whether they were his guns or not was immaterial to the jury’s consideration of the
case. The jury was also shown photos of Dye holding a “TEC-9,” the type of weapon
used to shoot Gray. Dye was tagged in the photos, which were posted to social
media. He knew about the photos. The state merely attempted to use the photos to
prove that Dye had familiarity with the gun used, not that he owned the guns or any
guns. They were able to make that case without the evidence regarding the guns
seized from Dye’s room. Therefore, trial counsel’s failure to inform the jury that Dye
did not own the guns found in his room was not prejudicial to Dye; the state had
already proven that Dye was familiar with the type of gun used to kill Gray.
Res Judicata
The trial court also found that Dye’s arguments were barred by res
judicata. We do not agree. However, the trial court did not abuse its discretion in
denying Dye’s petition because, as we stated above, Dye has not presented sufficient
evidence to meet his heavy burden.
“Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from raising and
litigating in any proceeding except an appeal from that judgment, any defense or
any claimed lack of due process that was raised or could have been raised by the
defendant at trial, which resulted in that judgment of conviction, or on an appeal
from that judgment.” State v. Perry, 10 Ohio St.2d 175,
226 N.E.2d 104 (1967),
paragraph nine of the syllabus.
However, when an appellant argues that trial counsel was ineffective
for failing to present a witness at trial, that claim is not barred by res judicata. See
State v. Jones, 8th Dist. Cuyahoga No. 83601, 2004-Ohio-3868, ¶ 6; State v.
McDaniel, 8th Dist. Cuyahoga No. 109611,
2020-Ohio-4755, ¶ 5. These types of
claims cannot be raised on direct appeal because they necessarily rely on evidence
outside of the record. Therefore, they cannot be barred by res judicata.
Even so, the trial court did not abuse its discretion in denying Dye’s
claims without a hearing. To warrant a hearing, the evidence outside the record that
is submitted in support of a petition ‘“must meet some threshold standard of
cogency; otherwise it would be too easy to defeat the holding of Perry by simply
attaching as exhibits evidence [that] is only marginally significant and does not
advance the petitioner’s claim beyond mere hypothesis and a desire for further
discovery.’” State v. Lawson, 103 Ohio App.3d 307, 315,
659 N.E.2d 362 (12th
Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton No. C-900811,
1993 Ohio
App. LEXIS 1485, 21 (Mar. 17, 1993).
As we discussed in detail above, Dye has simply not presented
sufficient evidence to overcome the required threshold. Dye’s affidavits instead
provide an alternative account of events that does not match the facts or overcome
the evidence presented by the state.
Accordingly, Dye’s first assignment of error is overruled.
B. Second Assignment of Error
The trial court erred when it denied Appellant’s Petition for Post-Conviction Relief which asserted that trial counsel was inadequate in
that he was conflicted in representing Appellant where he also
represented Jonathan Bella, a critical eyewitness who had an interest
adverse to Appellant.
Dye argues that trial counsel had a conflict of interest in representing
him because he previously represented Bella and protected Bella’s interests over
Dye’s. Bella had violated the conditions of his probation by consuming drugs and
alcohol at the party and would have had to admit to that fact if he testified. However,
we disagree that there was a conflict of interest.
The Sixth Amendment guarantee of effective assistance of counsel
includes the right to counsel’s undivided loyalties. Glasser v. United States, 315 U.S.
62 S.Ct. 457,
86 L.Ed. 680 (1942). To establish a Sixth Amendment violation for a
conflict of interest, a defendant raising a post-trial objection “must demonstrate that
an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v.
Sullivan,
446 U.S. 335, 348,
100 S.Ct. 1708,
64 L.Ed.2d 333 (1990). The mere
“possibility of conflict is insufficient to impugn a criminal conviction.”
Id. at 350. A
court will presume prejudice only if the defendant “demonstrates that counsel
‘actively represented conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer's performance.’”
Id.
Dye has not identified an actual conflict of interest, and we find no
evidence of an actual conflict. Dye argues that trial counsel knew that Bella would
have had to admit that he was in violation of his probation by attending the party,
and that trial counsel was therefore protecting Bella to Dye’s detriment. However,
even if we accept that trial counsel knew Bella was an eyewitness, which we do not,
trial counsel was not actively representing Bella at the time of Dye’s trial. Therefore,
there was no active representation of conflicting interests.
Further, there are competing claims as to whether trial counsel knew
Bella was a witness and that he did not want to testify for fear of admitting a
probation violation. If trial counsel is to be found more credible, which the trial
court found, there is no evidence that he had any knowledge of a conflict of interest
even if one existed. Without knowledge of the supposed conflict, trial counsel’s
performance could not have been impacted by the conflict. We therefore agree with
the trial court that Dye has not established an actual conflict of interest with any
particularity.
The trial court went on to state that, even if trial counsel knew Bella
was an eyewitness and a conflict of interest existed, Dye was not prejudiced by Bella
not testifying.
Dye argues that Bella would have been an ironclad witness in support
of his self-defense theory because he was friends with both Dye and Gray and would
have been compromising his probation by testifying. The trial court did not agree.
We do not find the trial court abused its discretion.
As we stated previously, the jury was not convinced by Dye’s self-
defense story. Dye and Barnes had already testified about Dye being beaten and
defending himself, only shooting Gray out of necessity. The jury instead believed
Elizabeth Torres. Bella would not have added anything the jury had not already
rejected. Bella’s testimony would not have changed the outcome of the trial.
Also, even if counsel did know that Bella was an eyewitness, there is
no evidence he was affected by his prior representation of Bella in making the
strategic decision not to call Bella. We do not find that the trial court abused its
discretion in finding there was no conflict and that Dye would not have been
prejudiced if there was a conflict.
The second assignment of error is overruled.
C. Third Assignment of Error
The trial court’s conclusion of law that the [second] amended petition
for post-conviction relief was untimely is flawed — all five of the
grounds raised in the [second] amended petition for post-conviction
relief are properly before this court.
Dye argues that his second amended petition for postconviction relief
was timely and should have been reviewed by the trial court. The trial court
concluded in its journal entry that Dye’s second amended petition for postconviction
relief was untimely. As a result, the court found it lacked jurisdiction to consider the
petition. However, a careful examination of the trial court’s findings of fact and
conclusions of law reveal that, though the court found the second amended petition
to be untimely, the court still fully considered the arguments.
Appellee argues that the court did fully consider all five of Dye’s
grounds for relief, including the fifth claim found in the second amended petition.
In his reply brief to this court, Dye agrees that the court did ultimately consider all
his arguments.
Dye’s third assignment of error asks this court to find that the trial
court erred in ruling his second amended petition to be untimely. His purpose in
doing so is to have the trial court review all his claims to relief both in his first
amended petition and his second amended petition. All parties and this court agree
that the trial court did review all his claims for relief. Accordingly, we overrule Dye’s
third assignment of error as moot.
VI. Conclusion
After careful review of the record and the trial court’s findings of fact
and conclusions of law, we find that the court did not abuse its discretion in denying
Dye’s second amended petition for postconviction relief. The judgment of the trial
court is affirmed.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN T. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
