State v. Kidd

[Cite as State v. Kidd, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                              No. 109126
                 v.                             :

LAMEER KIDD,                                   :

                 Defendant-Appellant.           :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: February 19, 2021


                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-19-640098-A
                                  Application for Reopening
                                      Motion No. 543635


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Frank Romeo Zeleznikar, Assistant
                 Prosecuting Attorney, for appellee.

                 Mary Catherine Corrigan and Alison F. Hibbard, for
                 appellant.


MCHELLE J. SHEEHAN, J.:

                   Appellant, Lameer Kidd, timely seeks to reopen his appeal in State v.

Kidd, 8th Dist. Cuyahoga No. 109126, 

. He claims that appellate
counsel was ineffective for not advancing a single proposed assignment of error

claiming, “The trial court erred in issuing a material witness warrant for the alleged

victim absent probable cause to believe she was material and that detention was

necessary to procure her attendance.” For the reasons that follow, we deny his

application.

I. Procedural History

               Kidd was tried and convicted for crimes related to an April 2019

incident where he forced his way into a residential care facility for children and

assaulted a woman. Kidd kicked in the door of the facility, then hit his girlfriend,

who worked at the facility, and dragged her by her hair out of the building to a

waiting car. He was convicted of aggravate burglary, assault as a lesser-included

offense of domestic violence, and abduction; and received an aggregate prison

sentence of 12 to 17 years.

               Kidd appealed his convictions to this court, raising four assignments

of error:

      I. The trial court violated Appellant’s right to be present at all stages
      of his trial.

      II. The trial court erred in failing to merge Counts 1 and 2.

      III. Assault is not a lesser included offense of domestic violence.

      IV. Appellant did not receive a fair trial because the jury heard evidence
      on a charge that had no legal or factual support.

               On October 22, 2020, this court issued an opinion that overruled the

first and fourth assignments of error, sustained the third assignment of error, and
vacated the conviction for Count 2, assault. Kidd, 8th Dist. Cuyahoga No. 109126,

. This rendered the second assignment of error moot. Id.

at ¶ 40.

              Kidd, through counsel, filed a timely application to reopen on

January 20, 2021. He raised the single proposed assignment of error set forth above.

The state responded in opposition on January 22, 2021.

II. Ineffective Assistance of Appellate Counsel

              App.R. 26(B) provides a means of addressing claims of ineffective

assistance of appellate counsel. The application must assert one or more proposed

assignments of error that previously were not considered or were not properly

considered because of appellate counsel’s deficient performance.             App.R.

26(B)(2)(c). The application “shall be granted if there is a genuine issue as to

whether the applicant was deprived of the effective assistance of counsel on appeal.”

App.R. 26(B)(5). The standard used to determine whether appellate counsel is

ineffective is the same standard that applies to claims of ineffective assistance of

counsel announced in Strickland v. Washington, 

, 

, 

 (1984). State v. Myers, 

, 

, 

. Pursuant to Strickland, Kidd bears the burden of showing “that his

counsel [was] deficient for failing to raise the issue he now presents, as well as

showing that had [counsel] presented those claims on appeal, there was a

‘reasonable probability’ that he would have been successful.” State v. Spivey, 

, 

 (1998).
III. The Issuance of a Material Witness Warrant

              Kidd claims that appellate counsel failed to raise an assignment of

error challenging the issuance of a material witness warrant.

              Pursuant to R.C. 2937.16 through 2937.18 and R.C. 2941.48, a

material witness warrant may be issued to secure the presence and testimony of a

witness at trial. However, the protections afforded by the Due Process Clause of the

United States Constitution must be observed in order to deprive witnesses of their

liberty. State ex rel. Dorsey v. Haines, 

, 

(2d Dist.1991). A material witness warrant “‘must be supported by probable cause,

supported by oath or affirmation, to believe that the witness is material and that the

detention of the witness is necessary to procure her attendance at trial.’” State v.

Hollins, 8th Dist. Cuyahoga No. 103864, 

, quoting 

.

              On August 6, 2019, the second day of trial, the state sought a material

witness warrant for the victim in the case. (Tr. 164.) The state supported its request

for the warrant with all the communications it had with the victim, including phone

conversations, the completed service of a subpoena that had an incorrect trial date,

notifying the victim via text message that a second subpoena was issued with the

correct date including a copy of the subpoena, information regarding the victim

cutting off communication with the prosecutor, her failure to appear as requested

by the subpoena, and elaborating on why the named victim’s testimony of Kidd’s

purported crimes was material. (Tr. 165-169.) None of these statements were sworn
or supported by affidavit, however all the statements were made on the record in

open court and subject to counter-argument by defense counsel. The defendant

objected to the issuance of the material witness warrant, but the trial court granted

the state’s motion after going over, in detail, the efforts the state made to ensure the

victim appeared to testify, the communications that the state had with her via phone

calls and text messages, the issuance of two subpoenas and the delivery of the second

subpoena to the victim through text message, and the other contacts the state had

with the victim. (Tr. 165-173.)

               Kidd claims this is insufficient to meet the requirements for the

issuance of a material witness warrant. He asserts that there was no sworn affidavit

or testimony and the state did not establish probable cause to arrest the victim.

               The requirements for the issuance of a material witness warrant set

forth above are necessary to protect the due process rights of the witness, not the

defendant. See State v. Eatmon, 8th Dist. Cuyahoga No. 108786, 

, quoting Robinson v. Green, 7th Dist. Mahoning No. 16 MA 0134, 2016-Ohio-

5688, ¶ 9, quoting 

. This court could find no Ohio case where a

defendant successfully appealed the grant of a material witness warrant in an effort

to vindicate the due process rights of a witness because the warrant was not

supported by probable cause, or oath or affirmation. Witnesses have the ability to

vindicate these due process rights on their own. See State v. Jeffery, 2d Dist.

Montgomery No. 24850, 

. This means that a defendant lacks
standing to raise possible violations of the rights of a witness. State v. Rice, 2019-

Ohio-1415, 

, ¶ 44-50 (11th Dist.).

               In Rice, the Eleventh District addressed a similar issue to the one

Kidd presents. The defendant in Rice argued that a victim’s rights as a witness and

rights under Marsy’s Law, Article I, Section 10a of the Ohio Constitution, were

violated when a warrant was issued to secure the victim’s testimony regarding two

domestic violence incidents. 

 The court held that a criminal defendant lacked

standing to challenge an alleged deprivation of a witness’s rights, including in

relation to the issuance of a warrant to compel witness testimony. Id. at ¶ 44-50.

               In the vast majority of cases where a defendant has challenged the

issuance of a material witness warrant, the arguments have been based on the

defendant’s own rights, for instance, by challenging the delay precipitated by the

granting of such a warrant.1 This is why the standard of review that courts often

apply is whether the trial court abused its discretion in granting or denying a

continuance to issue a material witness warrant. See Eatmon at ¶ 19, citing State v.

Metz, 8th Dist. Cuyahoga Nos. 107212, 107246, 107259, and 107261, 2019-Ohio-

4054, ¶ 86. See also State v. Smith, 5th Dist. Licking No. 11-CA-66, 

(defendant claimed that the delay caused by the issuance of a material witness

warrant deprived him of a speedy trial).




      1 This is in contrast to cases where a defendant’s request for a material witness
warrant have been denied, which may materially prejudice his or her defense.
               Here, the issuance of the warrant did not delay trial. The state sought

the warrant in the morning session of court. The state called witnesses for the

remainder of the day after the warrant was issued. Later the same day, the state

asked for a continuance until the next day to allow police officers to locate the victim.

Defense counsel had no objection. (Tr. 318.) Soon after that exchange occurred, the

victim appeared, seated at the back of the courtroom. (Tr. 319.) At sidebar, the state

asked the judge to dismiss the warrant, and then the state called the victim to testify.

(Tr. 320.) The warrant was never executed. Kidd claims in his application that the

victim appeared to testify as a direct result of the warrant and cites to pages 319 to

320 of the transcript. But those pages do not evidence that the victim appeared as a

result of the warrant. However, during the state’s questioning of the victim, she

admitted that she came to testify after learning of the warrant via text message (tr.

357), the same method Kidd claims was insufficient to provide notice to the victim

of the subpoena that was issued in this case.

               The issuance of the warrant did not result in delay. The victim

testified the same day the warrant was issued without the need for a continuance,

and without the warrant actually being executed.

               Under these circumstances, we cannot say that appellate counsel was

ineffective for not raising this issue in Kidd’s appeal. Judges should not second-

guess reasonable professional judgments and impose a duty on appellate counsel to

raise every possible issue. State v. Allen, 

, 

 (1996).

Further, not every error that occurs during trial is cognizable on appeal. State v.
Morris, 

, 

, 

. Where an

error is harmless under Crim.R. 52, an application for reopening may be denied.

State v. Williams, 7th Dist. Jefferson No. 11 JE 7, 

 (“Appellant

is not entitled to reopen his appeal for harmless error.”).

      To determine whether an error affected the substantial rights of the
      defendant and requires a new trial, we must ascertain “(1) whether the
      defendant was prejudiced by the error, i.e., whether the error had an
      impact on the verdict, (2) whether the error was not harmless beyond
      a reasonable doubt, and (3) whether, after the prejudicial evidence is
      excised, the remaining evidence establishes the defendant’s guilt
      beyond a reasonable doubt.”

State v. Graham, Slip Opinion No. 

, quoting State v. Arnold,

, 

, 

 (lead opinion), citing State

v. Harris, 

, 

, 

.

               Kidd has not pointed to any prejudice that resulted from the issuance

of the warrant that is endemic to him. Even if we assume that the trial court erred

in issuing the warrant, that only satisfies the first prong in the Strickland analysis.

To address the second prong, Kidd only makes a conclusory statement that there is

a reasonable probability of success on appeal. The prejudice of a material witness

warrant being issued without observing the strictures that protect the due process

rights of the witness flow to the witness, not the defendant. Kidd does not allege

that the issuance of the warrant impacted his own due process rights, for example,

by being coercive or causing the witness to testify untruthfully. See Rice, 2019-Ohio-

1415, 

, at ¶ 51 (11th Dist.).
               Whether or not the warrant should have been issued, the attack that

occurred at the residential care facility was witnessed by others, two of whom

testified at trial and established Kidd’s guilt for aggravated burglary and abduction.

               Aggravated burglary, defined in R.C. 2911.11(A)(1), as it applies to this

case, prohibits the trespass in an occupied structure by force with purpose to inflict

or attempt to include physical harm on another. R.C. 2905.02, defining the crime

of abduction as it relates to this case, states that no person by force shall remove

another from the place where the other person is found, or by force “restrain the

liberty of another person under circumstances that create a risk of physical harm to

the victim.”

               Debra Johnson testified that she was at work at the occupied

childhood residential care facility on the morning of the incident. She identified

Kidd as the person who kicked in the locked front door of the facility, struck the

victim — knocking her to the ground, and dragged her out of the facility by her hair.

(Tr. 254-260.) Tonya Brewer was also present at the residential care facility on the

morning of the incident. She testified that she witnessed Kidd kick in the front door,

assault the victim, and drag her out by her hair. (Tr. 272-276.) Also, the physical

state of the victim and her injuries soon after the incident were admitted at trial

through photographs and police body camera video, and the testimony of a

responding police officer. (Tr. 312-316.)

               In light of the testimony and evidence that was amassed against him

without the victim’s testimony, there is overwhelming evidence of Kidd’s guilt
beyond a reasonable doubt. We find that any error in the issuance of the warrant,

should it exist, was harmless beyond a reasonable doubt.

               Appellate counsel was not ineffective for arguing the issue Kidd now

raises in his application.

               Application denied.




MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR