State v. Lynch, Unpublished Decision (6-23-2005)
State v. Lynch, Unpublished Decision (6-23-2005)
Opinion of the Court
{¶ 3} Subsequently, a search warrant was obtained for appellant's residence and the semi automatic hand gun that was used to shoot Mosely was found. Appellant was arrested and charged.
{¶ 4} A jury trial was held on October 5, 2004. At trial, Mosely identified appellant as the man who shot him. Mosely testified that appellant approached the porch, pointed the hand gun at him and fired four to five times.
{¶ 5} Throughout the trial, appellant's defense counsel attempted to show that it was not appellant that fired the hand gun but one of the other assailants. Appellant testified that he did not shoot Mosely. Appellant claimed that as he, Tom Harding, Tony Askew and Patrick Harding approached Mosely's porch, Mosely said "go get my gun, go get my gun." Tr. at 415. At that point, appellant went back to his car, with Tom Harding following him. When they reached appellant's car, according to appellant, Tom Harding asked appellant to pass him a hand gun that appellant had in the car. Appellant testified that Tom then reached for the hand gun and obtained control of it. Tr. 416. Appellant claimed that Tom Harding then raised the hand gun and started shooting towards Mosely's house. At that point, Patrick Harding "took off running" and went home. Tr. 204. Appellant, Tom Harding and Tony Askew left the area in appellant's car. Appellant claimed he did not get the hand gun back until he dropped Tom Harding off. Id. at 419-420.
{¶ 6} Appellant's fiancé, Ashley Christian, testified on appellant's behalf. Appellant's trial counsel attempted to illicit information from both appellant and Ashley Christian about overhearing Tom Harding making a phone call from appellant's apartment in which Tom Harding admitted that he had shot Mosely. That evidence was excluded by the trial court as hearsay.1 There was also evidence presented through Ashley Christian that the phone call was reflected in a phone bill paid by Christian's grandmother. However, Christian did not have the phone bill with her.
{¶ 7} On October 7, 2004, the jury returned a verdict of guilty as charged. On October 25, 2004, after a presentence investigation, appellant was sentenced to nine years in prison for attempted murder and an additional mandatory and consecutive sentence of three years in prison to be served for conviction on the firearm specification.
{¶ 8} It is from this conviction and sentence that appellant appeals, raising the following assignment of error:
{¶ 9} "The appellant was deprived of the effective assistance of counsel when his trial counsel failed to present exculpatory evidence furnished him by the defendant."
{¶ 10} In the sole assignment of error, appellant contends that appellant was deprived of effective assistance of counsel when counsel failed to present exculpatory evidence and testimony. We disagree.
{¶ 11} The standard of review for a claim of ineffective counsel was established in Strickland v. Washington (1984),
{¶ 12} Specifically, appellant claims that counsel was ineffective when counsel failed to use inconsistencies in statements given to police by Tom Harding and Patrick Harding to impeach either of the Hardings and failed to introduce into evidence a telephone call allegedly made by Tom Harding from appellant's residence during which appellant and his fiancé allegedly overheard Tom Harding admit to being the shooter.
{¶ 13} Appellant presents no argument regarding his assertion that trial counsel failed to impeach either of the Hardings on alleged inconsistencies in their statements given to police. Thus, as to this assertion, appellant's assignment is deficient because it fails to fully develop the argument as required by App.R. 16(A)(7).2 Pursuant to App.R. 12, this court may disregard "[e]rrors not specifically pointed out in the record and separately argued by brief." Because appellant has failed to present any argument or citation to the record to identify what was stated by the witnesses to the police or how it could have been used to impeach the Hardings, we decline to address this argument.3
{¶ 14} We now turn to appellant's argument that trial counsel provided ineffective assistance of counsel when counsel failed to introduce into evidence a telephone call allegedly made by Tom Harding from appellant's residence during which appellant and his fiancé Ashley Christian claim Tom Harding admitted to being the shooter. First, appellant's trial counsel attempted to elicit testimony from Christian and appellant concerning the contents of the alleged phone call by Tom Harding. However, the testimony was excluded by the trial court as hearsay. The excluded testimony, which amounted to both Christian and appellant claiming that Tom Harding admitted to the shooting while on the phone, was proffered by trial counsel. Tr.at pgs. 509-510. Thus, the argument that counsel was ineffective for failing to introduce evidence of the alleged telephone call is without merit.4
{¶ 15} Further, appellant contends that appellant's theory, that Tom Harding was the shooter, would have had more credence had appellant's counsel introduced appellant's telephone bill into evidence to demonstrate that a call was placed from appellant's residence to the Harding residence. The issue of whether there was a telephone bill to substantiate the alleged call from appellant's residence to the Harding's residence was raised by a juror. As a result, appellant's trial counsel did question Ashley Christian, appellant's fiancé, about a telephone bill. Christian confirmed that there was such a telephone bill. However she did not have a copy of the bill with her. TR. at pg. 400.
{¶ 16} The phone record in question was not produced at trial nor proffered. Without the bill, this court cannot determine if the telephone bill would have confirmed that the call was made or not. Further, even if the record did contain a telephone bill documenting a call from appellant's residence to the Tom Harding residence, it would not prove that Tom Harding admitted to shooting Mosely or even that it was Harding that had made the phone call. Thus, we find no showing of prejudice to appellant, and, therefore, no ineffective assistance of counsel for failure to introduce the telephone bill.
{¶ 17} For the foregoing reasons, appellant's sole assignment of error is overruled.
{¶ 18} The judgment of the Guernsey County Court of Common Pleas is affirmed.
Edwards, J., Farmer, P.J. and Wise, J. concur.
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