State v. Cantwell, Unpublished Decision (11-24-1997)
State v. Cantwell, Unpublished Decision (11-24-1997)
Opinion of the Court
OPINION
On July 10, 1996, defendant-appellant, Kenneth Cantwell, was indicted on two counts of rape in violation of R.C.The victim, seventeen-year-old Angela G., testified that appellant began living in her home in the spring of 1985 when she was five years old. Angela G. testified that appellant frequently cared for her and her sister at night while her mother worked as a cocktail waitress. Angela G. testified that on at least five occasions during 1985 or 1986 appellant removed her from her bed and brought her to a recliner in the basement area of her home where he performed cunnilingus on her and forced her to perform fellatio. Angela G. also stated that she did not report these instances of sexual misconduct by appellant until 1996 because she feared for her safety.
Appellant was convicted of two counts of rape in violation of R.C.
Assignment of Error No. 1:
THE APPELLANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE COUNSEL BECAUSE HIS DEFENSE COUNSEL FAILED TO ADEQUATELY INVESTIGATE THE FACTS AND DID NOT PRESENT ADEQUATE TESTIMONY ON HIS BEHALF.
Assignment of Error No. 2:
DEFENSE COUNSEL'S FAILURE TO EFFECTIVELY CROSS-EXAMINE THE STATE'S WITNESS REINFORCED THE STATE'S CASE AND SERVED TO DENY MR. CANTWELL HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error No. 3:
DEFENSE COUNSEL INCORRECTLY RELIED ON THE COURT ALLOWING HIM ACCESS TO THE REPORT FROM CHILDREN'S SERVICES AND THE TRANSCRIPT OF THE GRAND JURY SO THAT HE COULD USE THE INFORMATION TO IMPEACH THE ALLEGED VICTIM'S TESTIMONY.
In his first assignment of error, appellant contends that he received ineffective assistance of counsel at trial. The test an appellate court must apply when reviewing an ineffective assistance of counsel claim is: (1) whether counsel's performance fell below an objective standard of reasonable professional competence, and (2) if so, whether there is a reasonable probability that counsel's unprofessional errors affected the outcome of the proceedings. Strickland v. Washington (1984),
Appellant first argues that defense counsel's performance was defective because he failed to present testimony from an expert witness at trial. The decision whether or not to call an expert witness is solely a matter of trial strategy. State v. Coleman (1989),
Appellant insists that defense counsel should have presented expert testimony "regarding the criteria to be applied to evaluate the genuineness" of Angela G.'s testimony. However, it is wellsettled law within the state of Ohio that an expert witness in a child sexual abuse case may not offer an opinion as to the veracity or credibility of the child-victim's testimony. State v. Boston (1989),
Appellant also argues that defense counsel's performance was deficient because counsel failed to call additional "family members and friends" to testify concerning the "family relationship" at the time the offenses occurred. "Decisions regarding the calling of witnesses are within the purview of defense counsel's trial tactics." State v. Coulter (1992),
Appellant has not demonstrated to the satisfaction of this court that any additional testimony from friends or family members concerning his "family relationship" would have contributed to his defense in this case. Defense counsel's decision not to subpoena friends of appellant or other family members to testify at trial must therefore be considered a matter of sound trial strategy. Appellant's first assignment of error is overruled.
In his second assignment of error, appellant contends that defense counsel failed to effectively cross-examine Tammy Armstrong, a Clermont County Children Services ("CCCS") caseworker who interviewed Angela G. after the rapes in this case were reported to authorities. An appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial counsel's strategic decision to engage in a particular line of questioning on cross-examination. State v. Smallwood (Oct. 14, 1996), Butler App. No. CA95-12-209, unreported; State v. Davis (Dec. 4, 1995), Butler App. No. CA94-12-214, unreported. Such decisions are presumed to be the product of a sound trial strategy. See State v. Clayton (1980),
The record indicates that defense counsel aggressively cross-examined Armstrong at trial. Counsel elicited testimony from Armstrong on cross-examination which exposed some discrepancies between Angela G.'s testimony at trial and the account of the rapes Angela G. initially reported to Armstrong. For example, Armstrong testified on cross-examination that Angela G. reported to her that both rapes occurred on a couch. This testimony directly contradicted Angela G.'s testimony at trial that both rapes occurred on a recliner. Defense counsel's cross-examination of Armstrong certainly cannot be said to have fallen below an objective standard of reasonable professional competence under these circumstances. Appellant's second assignment of error is overruled.
In his third assignment of error, appellant contends that defense counsel's performance was deficient because he unsuccessfully attempted to obtain a transcript of the grand jury proceedings and certain CCCS records for purposes of cross-examination. We disagree. Our review of the record and the applicable law in this case indicates that neither the grand jury transcript nor the CCCS records sought by defense counsel were discoverable. See State v. Greer (1981),
KOEHLER and WALSH, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.