[Cite as State v. Johnson,
2023-Ohio-80.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
v. : No. 110673
CURTIS JOHNSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: January 11, 2023
Cuyahoga County Court of Common Pleas
Case No. CR-20-647441-A,
Application for Reopening
Motion No. 558684
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Kristen Hatcher and Kristen L. Sobieski,
Assistant Prosecuting Attorneys, for appellee.
Curtis Johnson, pro se.
SEAN C. GALLAGHER, P.J.:
On October 4, 2022, the applicant, Curtis Johnson, pursuant to
App.R. 26(B), applied to reopen this court’s judgment in State v. Johnson, 8th Dist.
Cuyahoga No. 110673, 2022-Ohio-2577, in which this court affirmed his convictions
for two counts of murder, two counts of felonious assault, and one count each of
involuntary manslaughter, discharge of a firearm on or near prohibited premises,
all with one- and three-year firearm specifications, and having weapons while under
disability. Johnson now maintains that his appellate counsel should have argued
the following: (1) Johnson was denied his constitutional right for the jury to decide
the weight of the evidence and the credibility of the witnesses; (2) trial counsel was
ineffective for failing to seek jury instructions on the lesser included offense of
manslaughter; and (3) there was clear error in the record by labeling Johnson as the
“shooter” in the synthesized video of the event. The state of Ohio filed its brief in
opposition on November 21, 2022. For the following reasons, this court denies the
application to reopen.
In the early morning hours of December 1, 2019, in the Legacy
Nightclub, Curtis Johnson got into a fight with Eric White and Catera Fowler. As
the bar emptied, Johnson went to his car, removed his sweatshirt, and waited for
White to exit. When White and Fowler left the bar, White approached in a manner
suggesting he intended to continue the fight. White pulled out a firearm, and
Johnson ran back to his car and sought refuge behind it. At that time, someone fired
shots and the crowd dispersed. White and Fowler ran past Johnson’s car and
continued down the street. Johnson retrieved a gun from his car and began shooting
down the street in the direction of White and Fowler. Fowler was struck in the lower
left back and the bullet exited ten inches higher from her right chest. She died from
this wound. During the investigation, the police found shell casings from four
different guns, and it was never determined which gun fired the fatal shot.
The grand jury indicted Johnson for the seven charges listed above.
Defense counsel sought a jury instruction on self-defense, but the trial court
declined to give one. The jury found Johnson guilty of all charges. The trial judge
merged the two murder counts with one count of felonious assault and the
involuntary manslaughter charge. He imposed an aggregate sentence of 21 years to
life.
Appellate counsel argued that the trial court erred in refusing to
instruct on self-defense and that the verdicts for murder, involuntary manslaughter,
and felonious assault were not supported by sufficient evidence. The failure to
identify which of the four weapons killed Fowler created a reasonable doubt as to
whether Johnson was the killer. Johnson now argues that his appellate counsel was
ineffective.
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); and State v. Reed,
74 Ohio St.3d 534,
1996-Ohio-21,
660 N.E.2d 456.
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 at 689.
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.
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 reasonable probability is a probability sufficient to undermine confidence in the
outcome. A court need not determine whether counsel’s performance was deficient
before examining prejudice suffered by the defendant as a result of alleged
deficiencies.
In his first proposed assignment of error, Johnson argues that the
trial court deprived him of his right to a jury trial by not instructing the jurors on
self-defense. He proposes that his appellate counsel should have framed the
argument as the trial judge usurping the jury’s role by making his own evaluation of
the weight of the evidence and the credibility of the witnesses.
However, appellate counsel directly addressed the issue by arguing
that the trial court erred by failing to instruct the jury on self-defense. He
incorporated the role of the jury in his argument: “Certainly the evidence was such
that the question should have gone to the jury for its consideration.” (Pg. 5 of
appellant’s brief.) “The trial court’s refusal to allow the question of self-defense to
go to the jury for its consideration was error. The jury would have been free to accept
or reject the defense, but never had the opportunity.” (Pg. 7 of appellant’s brief.)
“By refusing the self-defense instruction, the lower court failed to ‘fully and
completely give the jury all instructions which are relevant and necessary for the jury
to weigh the evidence and discharge its duty as the fact finder.’” (Pg. 8 of appellant’s
brief, quoting State v. White, 142 Ohio St.3d 277,
2015-Ohio-492,
29 N.E.3d 939.)
Appellate counsel in the exercise of professional judgment was not ineffective for
directly addressing the issue as a failure to give a necessary jury instruction and
emphasizing the role of the jury as part of the argument.
Johnson’s second argument is that appellate counsel failed to seek a
jury instruction on the lesser included offense of manslaughter. Johnson in his
application clarifies that he means involuntary manslaughter. However, the grand
jury indicted him for involuntary manslaughter, the trial judge instructed on that
charge, and the jury found him guilty of involuntary manslaughter. Thus, the
argument is ill-founded.
Johnson’s final argument is that it was error to label him as the
“shooter” in the synthesized video of the event. Multiple cameras in and around the
bar captured the event from various angles. The state synthesized the videos into
one approximately four-minute video showing the event as it occurred. The state
labeled Johnson as the “shooter” in the video. Johnson argues that this unfairly
prejudiced him in front of the jury. Although Johnson’s trial counsel objected to the
label, in his closing argument he acknowledged that the video shows Johnson
shooting. Trial counsel argued that this video showed him shooting in a downward
direction, thus, making it impossible for Johnson to be the killer, because the bullet
that killed Fowler entered her in an upward trajectory. (Tr. 590-591.)
Johnson cites Holbrook v. Flynn, 475 U.S. 560,
106 S.Ct. 1340,
89
L.Ed.2d 525 (1986), for the proposition that the test is whether there was an
unacceptable risk of prejudice. In that case, the United States Supreme Court ruled
that having extra uniformed officers in the courtroom was not inherently prejudicial
as to deprive the defendant of a fair trial. So too in the present case, the truth that
Johnson fired his gun and trial counsel’s efforts to use the video and the other
evidence to show that Johnson was not the killer did not deprive Johnson of a fair
trial by labeling him as the “shooter.” Following the admonition of the Supreme
Court, this court rules that appellate counsel in the exercise of professional judgment
could properly decline to make this argument.
Accordingly, this court denies the application to reopen.
_______________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, A.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR
