[Cite as State v. Bunch,
2024-Ohio-5514.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
CHAZ DIONYOUS BUNCH,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 MA 0030
Application for Reconsideration
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Denied.
Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Chief,
Criminal Division, and Atty. Edward A. Czopur, Assistant Prosecuting Attorney, for
Plaintiff-Appellee and
Atty. Joseph C. Patituce, Patituce & Associates, LLC, for Defendant-Appellant.
Dated: November 21, 2024
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PER CURIAM.
{¶1} On October 31, 2024, Appellant, Chaz Dionyous Bunch, filed an application
requesting that this court reconsider our decision in State v. Bunch, 2024-Ohio-5085 (7th
Dist.), in which we affirmed the February 12, 2024 judgment of the Mahoning County
Court of Common Pleas. This matter came before the trial court on remand from the
Supreme Court of Ohio, State v. Bunch,
2022-Ohio-4723, to conduct an evidentiary
hearing on the eyewitness identification claim in Appellant’s petition for post-conviction
relief. Following the hearing, the trial court found that Appellant’s trial counsel was not
ineffective during the jury trial in choosing not to call an eyewitness identification expert.
On appeal, Appellant asserted the trial court abused its discretion in denying his petition
for post-conviction relief because he established his trial counsel was ineffective. Finding
no reversible error, we affirmed. Appellant contends this court’s decision was in error and
that we should, therefore, reconsider the opinion pursuant to App.R. 26(A). Appellee, the
State of Ohio, filed a response on November 12, 2024.
App.R. 26, which provides for the filing of an application for
reconsideration in this court, includes no guidelines to be used in the
determination of whether a decision is to be reconsidered and
changed. Matthews v. Matthews, 5 Ohio App.3d 140, 143,
450 N.E.2d 278
(10th Dist.1981). The test generally applied is whether the motion for
reconsideration calls to the attention of the court an obvious error in its
decision or raises an issue for our consideration that was either not at all or
was not fully considered by us when it should have been. Id. An application
for reconsideration is not designed for use in instances where a party simply
disagrees with the conclusions reached and the logic used by an appellate
court. State v. Owens, 112 Ohio App.3d 334, 336,
678 N.E.2d 956 (11th
Dist.1996). Rather, App.R. 26 provides a mechanism by which a party may
prevent miscarriages of justice that could arise when an appellate court
makes an obvious error or renders an unsupportable decision under the
law. Id.
D.G. v. M.G.G.,
2019-Ohio-1190, ¶ 2 (7th Dist.).
Case No. 24 MA 0030
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{¶2} In his application, Appellant contends “there is error in this Honorable
Court’s analysis as it relates to the question of whether Mr. DiMartino provided Appellant
with the constitutionally mandated effective assistance of counsel.” (10/31/2024
Application for Reconsideration, p. 2). Appellant argues “the testimony offered by Dr.
Kovera was admissible as it would go to the factors expressed by the Supreme Court of
Ohio in State v. Buell, 22 Ohio St.3d 124 (1986).” (Id. at p. 4). Appellant alleges this
court’s decision “did not take into account the Supreme Court’s holding in Bunch or
analyze Dr. Kovera’s testimony under Buell.” (Id. at p. 6). Appellant posits “given the
Supreme Court’s direct holding that there was no reasonable method to introduce the
defense of misidentification through cross-examination,” and “coupled with Dr. Kovera’s
admissible testimony concerning the factors that impair a normal witness, this Honorable
Court must reconsider its decision and enter judgment in favor of Mr. Bunch.” (Id.)
{¶3} Contrary to Appellant’s assertions, the record establishes this court did not
make any obvious errors or render a decision that is not supported by the law.
{¶4} In Bunch, 2024-Ohio-5085, we stated the following:
Regarding eyewitness identification, “[g]enerally, the decision not to
call an expert witness does not constitute ineffective assistance of counsel
because that decision is solely a matter of trial strategy.” State v. Tobert,
2003-Ohio-675, ¶ 19 (1st Dist.), citing State v. Coleman,
45 Ohio St.3d 298,
307-308 (1989).
The trial court was well within its discretion to deny Appellant’s
postconviction petition as Appellant failed to show that his trial counsel’s
performance was deficient and further failed to show that he was prejudiced
by counsel’s decision not to employ an eyewitness identification expert.
DiMartino’s considered choice not to employ an eyewitness identification
expert did not make his performance deficient under both prongs of
Strickland.
There exists no precedent that requires the use of an eyewitness
identification expert. See Horton v. Richard, 2013 WL 5492337, *19 (S.D.
Case No. 24 MA 0030
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Ohio Oct. 1, 2013) (“‘No precedent establishes that defense counsel must
call an expert witness about the problems with eyewitness testimony in
identification cases or risk falling below the minimum requirements of the
Sixth Amendment.’”) (Internal citation omitted). Our Sister Court found that
trial counsel was not ineffective in choosing not to employ an eyewitness
identification expert as trial counsel thoroughly cross-examined the victims
on their identification of the defendant. State v. Horton, 2011-Ohio-1387, ¶
20 (10th Dist.). Similar to Horton, trial counsel here also thoroughly cross-examined the victim and continued to argue about misidentification
throughout the trial.
Appellant stresses that Dr. Kovera explained at the post-conviction
hearing that M.K.’s eventual identification of him was contaminated by
M.K.’s observations of Appellant on the news and that the identification was
highly suggestive. Dr. Kovera relied on these conclusions when she claimed
that an eyewitness expert’s testimony could have impacted the outcome of
the trial.
In State v. Knight, 2024-Ohio-2176 (7th Dist.), the appellant claimed
the trial court improperly barred his expert (Dr. Kovera) from offering an
opinion as to the specific reasons why she thought a victim’s identification
of the appellant as the shooter was mistaken. Id. at ¶ 39-40, 112. Relying
on the Supreme Court of Ohio’s decision in State v. Buell, 22 Ohio St.3d
124 (1986), this court stated, “Evid.R. 702 did not allow a psychological
expert to opine about the credibility of a specific eyewitness’ identification
testimony unless the eyewitness had a physical or mental impairment that
may affect that witness’ ability to observe or recall events.” Id. at ¶ 115. This
court found the appellant’s assignment of error on that issue lacked merit.
Id. at ¶ 121.
Here, Dr. Kovera claimed at the post-conviction hearing that the
outcome of the trial could have been different if an eyewitness identification
Case No. 24 MA 0030
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expert had testified. However, Dr. Kovera’s testimony relied upon
information that she could not convey to a jury. Thus, Dr. Kovera’s testimony
cannot lend support to an argument that trial counsel rendered ineffective
assistance by not calling her, or another expert, at the jury trial.
Similarly, Attorney Koblentz claimed at the post-conviction hearing
that an eyewitness identification expert should have been brought in to tell
the jury that M.K.’s identification was not reliable. Like Dr. Kovera, Attorney
Koblentz improperly believed that an expert could testify that M.K.’s
identification was not reliable. Knight at ¶ 115; State v. Patterson, 2015-
Ohio-873, ¶ 61 (“It is the factfinder, not an expert, who is properly charged
with assessing the credibility or ‘trustworthiness’ of a witness.”)
The references by the Supreme Court of Ohio in Bunch, 2022-Ohio-
4723, to Hinton v. Alabama, 571 U.S. 263 (2014) and State v. Herring,
2014-Ohio-5228, are only relevant to its finding that an evidentiary hearing
was warranted.
In Hinton, the United States Supreme Court held that “[u]nder that
(Strickland) standard, it was unreasonable for Hinton’s lawyer to fail to seek
additional funds to hire an expert where that failure was based not on any
strategic choice but on a mistaken belief that available funding was capped
at $1,000.” Hinton, 571 U.S. at 273. Unlike Hinton, DiMartino made it clear
that he was aware that funds were available and that he could request
additional funds if he saw fit. However, DiMartino made a strategic choice
not to employ an eyewitness identification expert in this case.
In Herring, the defendant was part of a group of six that robbed an
inn during which they shot five people, three of whom died. Herring, 2014-
Ohio-5228, at ¶ 3. The defendant was convicted of three counts of
complicity to commit aggravated murder, among other crimes, and was
sentenced to death. Id. at ¶ 11. Subsequent postconviction proceedings
focused on the effectiveness of counsel during mitigation. Id. at ¶ 19. The
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defense’s mitigation investigator revealed he did not have enough time to
thoroughly investigate the case, did not know if defense counsel had the
defendant examined by a psychologist, and in summary, that he had done
a “substandard job of mitigation investigation.” Id. at ¶ 36-38. On review by
the Supreme Court of Ohio, it was determined that defense counsel
assigned to represent capital defendants have a responsibility to ensure a
thorough mitigation investigation was completed. Id. at ¶ 111. The Supreme
Court concluded that due to the statements of the mitigation investigator
and the evidence presented, trial counsel was ineffective. Id. at ¶ 111, 135.
Thus, Herring did not and could not involve a strategic choice. Unlike
Herring, DiMartino in the case at bar made a strategic choice after
contemplating the use of an eyewitness identification expert.
Appellant also stresses that he was excluded as the source of DNA
in the rape kit. However, “physical evidence is not required to support a rape
conviction against a manifest weight challenge.” State v. Thomas, 2015-
Ohio-5247, ¶ 31 (9th Dist.). Notwithstanding the DNA exclusion, the lack of
eyewitness identification expert testimony, and the fact that M.K.’s
identification of Appellant was delayed, the record establishes evidence of
Appellant's guilt, as addressed [in great detail]. . . .
DiMartino successfully convinced the jury to acquit Appellant of the
aggravated robberies involving other victims, Cosa and Hammond, which
took place right before the incident involving M.K. However, given the
overwhelming evidence against Appellant regarding M.K., as addressed,
any deficiency in trial counsel’s performance does not allow for reversal on
a claim of ineffective assistance of counsel. See State v. Grate, 2020-Ohio-
5584, ¶ 137; State v. Clinton, 2017-Ohio-9423, ¶ 41.
Upon consideration, the trial court did not abuse its discretion in
denying Appellant’s petition for post-conviction relief following a hearing.
The record establishes trial counsel’s representation was constitutionally
Case No. 24 MA 0030
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effective and Appellant did not suffer prejudice. Appellant fails to
demonstrate ineffective assistance of counsel under Strickland.
Bunch, 2024-Ohio-5085, ¶ 30-42.
{¶5} Upon consideration of the App.R. 26(A) application filed in the present
matter, it is apparent that Appellant has not demonstrated any obvious errors or raised
any issues that were not adequately addressed in our previous opinion. This court is not
persuaded that we erred as a matter of law.
{¶6} An application for reconsideration is not designed to be used in situations
wherein a party simply disagrees with the logic employed or the conclusions reached by
an appellate court. Owens, 112 Ohio App.3d at 336. App.R. 26(A) is meant to provide a
mechanism by which a party may prevent a miscarriage of justice that could arise when
an appellate court makes an obvious error or renders a decision that is not supported by
the law.
Id. Appellant has made no such demonstration.
{¶7} For the foregoing reasons, Appellant’s application for reconsideration is
hereby denied.
JUDGE KATELYN DICKEY
JUDGE CAROL ANN ROBB
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 24 MA 0030
