[Cite as State v. Williams,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98528

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TERRANCE WILLIAMS DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-543577 Application for Reopening Motion No. 466336

RELEASE DATE: January 17, 2014

-i- FOR APPELLANT

Terrance Williams, pro se Inmate No. 624-712 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Brent C. Kirvel Assistant County Prosecutors 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:

{¶1} In State v. Williams, Cuyahoga C.P. No. CR-543577, the applicant,

Terrance Williams, was found guilty of two counts of aggravated murder, kidnapping,

discharging a firearm on or near a prohibited premises, carrying a concealed weapon, and

having weapons while under a disability. In State v. Williams, 8th Dist. Cuyahoga No.

98528,

, this court affirmed in part, reversed in part, and remanded for a

limited resentencing hearing for purposes of addressing the multiple aggravated murder

convictions as being allied offenses subject to merger.

{¶2} Williams, pro se, has filed with the clerk of this court an application for

reopening. He asserts that he was denied the effective assistance of appellate counsel for

failure to raise the alleged ineffectiveness of his trial counsel. Specifically, Williams

maintains that his trial counsel should have requested jury instructions on the

lesser-included offense of involuntary manslaughter and that trial counsel should have

retained independent expert witnesses in the areas of trace evidence and DNA analysis.

We deny the application for reopening for the reasons that follow. See App.R. 26(B)(6).

{¶3} Having reviewed the arguments set forth in the application for reopening in

light of the record, Williams has failed to meet his burden to demonstrate that “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).

{¶4} In State v. Spivey,

,

,

, the Supreme Court specified the proof required of an applicant as follows:

the two-prong analysis found in Strickland v. Washington (1984),

,

,

, is the appropriate standard to assess a defense request for reopening under App.R. 26(B)(5). [Applicant] must prove that his counsel were deficient for failing to raise the issues he now presents, as well as showing that had he presented those claims on appeal, there was a “reasonable probability” that he would have been successful. Thus [applicant] bears the burden of establishing that there was a “genuine issue” as to whether he has a “colorable claim” of ineffective assistance of counsel on appeal.

Id. at 25.

{¶5} Williams has not established his claim for ineffective assistance of appellate

counsel for failing to question trial counsel’s effectiveness for not requesting an

involuntary manslaughter jury instruction. It cannot be established from the record that

trial counsel was ineffective for not requesting a jury instruction on the lesser included

offense of involuntary manslaughter. The record does not support that instruction and,

even if it did, the decision of whether to request a lesser-included offense jury instruction

is deemed trial strategy. State v. Griffie,

,

(1996)

(“Failure to request instructions on lesser-included offenses is a matter of trial strategy

and does not establish ineffective assistance of counsel”); State v. Thomas,

,

(1988).

{¶6} “Even though an offense may be statutorily defined as a lesser included

offense of another, a charge on such lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense.” Thomas, 40 Ohio St.3d at paragraph two of the syllabus. “[A]n instruction on the lesser included offense of

involuntary manslaughter will be given in a murder trial only when, on the evidence

presented, the jury could reasonably find against the state on the element of

purposefulness and still find for the state on the defendant’s act of killing another.”

.

{¶7} Williams believes that the testimony of the witnesses at trial established the

elements of kidnapping but did not prove he had an intent to kill Darden. He maintains

this establishes that his trial attorney had no strategic reason for failing to request an

involuntary manslaughter instruction.

{¶8} However, several witnesses testified not only that Williams removed Darden

from the house at gunpoint, but they also stated that they saw Williams shoot Darden.

Some witnesses testified that after Darden fell from the first gunshot, Williams dragged

him from the street to the sidewalk and shot him again. Then, Williams sustained a

gunshot wound, causing him to fall on top of Darden. Some witnesses did not see what

happened but heard gunfire. It was within the province of the jury to ultimately determine

whether all, some, or any of the testimony and evidence was credible, however, this

record did not support an instruction on involuntary manslaughter. Thomas,

(finding an involuntary manslaughter instruction was not proper where “under no

reasonable view of the evidence, even in a light most favorable to the accused, could the

jury have found that Thomas did not purposely intend to cause the death of Newhouse.”)

{¶9} Alternatively, it is a recognized trial strategy to forego lesser-included offense instructions as an election to seek acquittal rather than to invite conviction on a lesser

offense. State v. Clayton,

,

(1980) (even if trial

counsel’s strategy is questionable, tactical decisions do not amount to ineffective

assistance of counsel); see also State v. Jones, 8th Dist. Cuyahoga No. 80737,

, ¶ 8. Based on the foregoing, appellate counsel was not ineffective for

choosing not to pursue an ineffective assistance of counsel claim on this basis. Jones,

, ¶ 8 (finding appellate counsel was not ineffective for not asserting

ineffective assistance of trial counsel for not seeking an involuntary manslaughter jury

instruction).

{¶10} Next, Williams contends his appellate counsel should have raised the issue

of trial counsel’s failure to investigate his case. In this regard, Williams refers to the

negative gunshot residue test of his hands and clothing and the DNA test results.

However, the record reflects that counsel fully developed and challenged this evidence,

through cross-examination, at trial.

{¶11} Williams maintains his trial counsel should have hired independent experts

in trace evidence and DNA analysis. However, Williams can only speculate that such

assistance would have changed the outcome in this case. There is nothing in the record to

determine whether any such expert evidence would have been favorable to Williams.

Further, the decision of whether to retain an independent expert is trial strategy and does

not support a claim for ineffective assistance of trial counsel. State v. Nicholas,

,

(1993) (“the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.”) Appellate

counsel was not ineffective by not raising this meritless claim.

{¶12} Williams also asserts that his appellate counsel was ineffective by not

assigning prosecutorial misconduct as an error. Williams essentially contends that the

state engaged in the subornation of perjury based on Garrick Dalton’s conflicting

statements and testimony. Williams suggests that the state gave Dalton a “deal” in

exchange for his alleged assistance in securing a conviction against him. Dalton was

subject to cross-examination and denied receiving anything in exchange for his testimony.

Appellate counsel addressed the conflicts in Dalton’s testimony and specifically

indicated that his testimony was not reliable in arguing that Williams’s convictions should

be reversed and vacated. There was no evidence that the state permitted or knowingly

elicited perjured testimony from Dalton. Therefore, it was proper for appellate counsel to

address and challenge Dalton’s credibility through errors alleging that Williams’s

convictions resulted from insufficient evidence or were against the manifest weight of the

evidence.

{¶13} Williams has not met the standard for reopening. Accordingly, the

application for reopening is denied.

__________________________________ KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, A.J., and LARRY A. JONES, SR., J., CONCUR