[Cite as State v. Harris,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108377 v. :

DWAYNE HARRIS, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: November 20, 2020

Cuyahoga County Court of Common Pleas Case No. CR-18-630253-A Application for Reopening Motion No. 539991

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellee.

Dwayne Harris, Jr., pro se.

MICHELLE J. SHEEHAN, J.:

On July 16, 2020, the applicant, Dwayne Harris, Jr., pursuant to

App.R. 26(B) and State v. Murnahan,

,

(1992),

applied to reopen this court’s judgment in State v. Harris, 8th Dist. Cuyahoga No. 108377,

, in which the court affirmed his convictions for gross

sexual imposition and kidnapping.1 Harris now maintains that his appellate counsel

was ineffective for not arguing the following: (1) the trial court erred by failing to

ensure that Harris knew of his right to testify in his own defense; (2) trial counsel

was ineffective for resting without ensuring that Harris had properly waived his

right to testify; for failing to object to the social worker’s vouching for the

truthfulness of the children; for failing to investigate the validity of the detective’s

statement; for failing to call character witnesses; for obtaining unnecessary,

unreasonable, and unwanted continuances; and for failing to move the trial judge to

recuse himself; (3) Harris was denied his right to a speedy trial; (4) the trial judge

was improperly assigned to the case; and (5) the trial judge abused his discretion by

failing to rule on certain pretrial motions. In early August, Harris sought leave to

file the following additional arguments: (6) the prosecutor introduced misleading

physical evidence, and (7) trial counsel was ineffective for failing to object to the

misleading physical evidence and for failing to investigate necessary physical

evidence. On August 13, 2020, the state of Ohio filed its brief in opposition to all of

Harris’s arguments. For the following reasons, this court denies the application.

Factual and Procedural Background

In October 2016, Harris moved into the home of his girlfriend, who

had three daughters. All three of the girls were less than 13 years old during the time

1 The court notes the Dwayne Harris, Jr., born April 1, 1980, is not the same person

as Dwayne Harris, born February 1, 1964, who is a vexatious litigator. of the alleged incidents. The oldest daughter testified that Harris was left in charge

of the girls when the mother went to work. She testified that Harris molested her in

various ways, such as pulling her pants down and touching her between her legs,

putting his fingers into her private part, trying to put his private part into her private

part, and pulling up her shirt and bra and licking her breasts. The final incident

occurred in 2018 in which Harris had ordered the girls to clean up a mess in the

basement; their brother had torn up a bunch of foam that was hard to pick up. The

two younger sisters went upstairs, but Harris told the oldest sister that she was not

done. He pulled her over to a couch and put his hand down her pants and touched

the outside of her private part. The oldest sister pulled away and ran upstairs and

hid in a closet. Harris followed her upstairs and told the mother that the oldest sister

ran upstairs to avoid cleaning the basement. The three of them returned to the

basement where Harris began throwing the girl around. At that time, she began to

cry and told her mother that Harris had been touching her. When Harris went to

work the next day, the mother removed her family to her sister’s house. She also

sought medical attention for the girls. Subsequently, the mother and the girls talked

to a social worker and a detective, and all three girls reported sexual misconduct

against Harris.

The grand jury indicted Harris on the following charges: (1) rape,

fellatio, against the oldest sister; (2) kidnapping against the oldest sister; (3) rape,

digital penetration, against the oldest sister; (4) kidnapping against the oldest sister;

(5) rape, vaginal intercourse, against the oldest sister; (6) kidnapping against the oldest sister, (7) gross sexual imposition, touched breast with mouth, against the

oldest sister; (8) gross sexual imposition, touched the vaginal area, against the oldest

sister; (9) kidnapping against the oldest sister; (10) gross sexual imposition against

the oldest sister; (11) kidnapping against the oldest sister; (12) rape, digital

penetration, against the middle sister; (13) kidnapping against the middle sister;

(14) rape, digital penetration, against the middle sister; (15) kidnapping against the

middle sister; (16) gross sexual imposition, touching the vaginal area, against the

youngest sister; (17) kidnapping against the youngest sister; (18) gross sexual

imposition touching the buttocks, against the youngest sister; and (19) kidnapping

against the youngest sister.

At a bench trial, in addition to the oldest sister’s testimony, the middle

sister testified that Harris once kissed her on her mouth and hit her in her jaw

several times. The youngest sister testified that Harris once touched her private

part, her crotch, over her clothes. At the end of the state’s case, the state voluntarily

dismissed Count 8, gross sexual imposition, touching the vaginal area, against the

oldest sister; Count 12, rape, the digital penetration of the middle sister; Count 13,

the corresponding kidnapping count; Count 18, gross sexual imposition, touching

the buttocks of the youngest sister; and Count 19, the corresponding kidnapping

count. Pursuant to the defense’s Crim.R. 29 motion, the trial court dismissed Count

14, rape, digital penetration of the middle sister and Count 15, the corresponding

kidnapping count. The trial judge found Harris not guilty of Count 1, rape, fellatio,

against the oldest sister; Count 2, its corresponding kidnapping count; Count 3,

rape, digital penetration, against the oldest sister; Count 4, its corresponding

kidnapping count; Count 5, rape, vaginal intercourse, against the oldest sister;

Count 6, its corresponding kidnapping count; Count 16, gross sexual imposition

against the youngest sister; and Count 17, the corresponding kidnapping count. The

trial judge found Harris guilty of Count 7, touched breast with mouth, gross sexual

imposition against the oldest sister; Count 9, its corresponding kidnapping count;

Count 10, gross sexual imposition, the last incident, against the oldest sister; and

Count 11, its corresponding kidnapping count.

Everybody agreed that Count 7 merged with Count 9 and that Count

10 merged with Count 11. The state elected to proceed on the gross sexual imposition

charges, Counts 7 and 10. The judge then sentenced Harris to 10 years to life on

Count 10 and 3 years on Count 7, to be served concurrently.

Harris’s appellate counsel argued two assignments of error: The

verdict was not supported by sufficient evidence, and the verdict was against the

manifest weight of the evidence. Harris now maintains that his appellate counsel

was ineffective.

Legal Analysis

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,

,

,

(1984); State v. Bradley,

,

(1989); and State v. Reed,

,

,

.

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.’”

.

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,

,

,

(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,

,

,

.

Furthermore, 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.

Moreover, appellate review is strictly limited to the record. The

Warder, Bushnell & Glessner Co. v. Jacobs,

,

(1898). Thus,

“a reviewing court cannot add matter to the record that was not part of the trial

court’s proceedings and then decide the appeal on the basis of the new

matter.” State v. Ishmail,

,

(1978), paragraph one

of the syllabus. “Nor can the effectiveness of appellate counsel be judged by adding

new matter to the record and then arguing that counsel should have raised these

new issues revealed by the newly added material.” State v. Moore,

,

,

. “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate

counsel.” State v. Burke,

,

,

, ¶ 10.

Harris’s first argument is that the trial court erred by not ensuring

that Harris knew of his right to testify on his own behalf. As an alternative to this

argument, Harris asserts that his trial counsel was ineffective for resting the case

without ensuring that Harris had properly waived his right to testify.

At a pretrial, Harris asserted his innocence and his desire to prove it,

but did not explicitly state he wanted to testify. When his defense counsel rested

and stated, “We have no witnesses,” Harris was silent. (Tr. 564.) An examination

of the transcript does not show that, during trial, Harris stated he wanted to testify.

Only at sentencing did Harris say he wanted to take the stand. (Tr. 603.)

As to the responsibility of the judge to ensure that a defendant has

waived his right to testify, the law is clear.

The court has no obligation to inquire into whether the defendant knowingly and intelligently waived the right not to testify inherent in the privilege against compelled self-incrimination. It is primarily the responsibility of counsel, not the judge, to advise a defendant on whether or not testify, and the tactical advantages and disadvantages of each choice. For the court to discuss the choice with defendant would intrude into the client-counsel relationship * * *.

United States v. Martinez,

(9th Cir. 1989) and United States v.

Goodwin,

(7th Cir. 1985). The courts of Ohio have affirmed this

principle. “[T]he court has no duty to advise the defendant of his right to testify, nor

is the court required to ensure that an on-the-record waiver has occurred.” State v.

Bey, 6th Dist. Lucas No. L-94-003,

(Sept. 19, 1997) and State v. Morrison, 10th Dist. Franklin No. 91AP-1326,

(Oct. 7, 1993).

Appellate counsel was not ineffective for failing to argue that trial

counsel was ineffective for not ensuring that Harris properly waived his right to

testify. “The advice provided by a criminal defense lawyer to his or her client

regarding the decision to testify is ‘a paradigm of the type of tactical decision that

cannot be challenged as evidence of ineffective assistance.’” State v. Winchester,

8th Dist. Cuyahoga No. 79739,

, ¶ 12, citing Hutchins v. Garrison,

(4th Cir. 1983). Moreover, the defendant’s conduct provides a

sufficient basis to determine whether the right to testify has been waived. A

defendant’s silence in the face of his attorney’s decision not to call him as a witness

effectively waives the right to testify on his own behalf. Bey, supra.

Next, Harris complains that his trial counsel failed to object to the

testimony of the social worker on the grounds that she vouched for the truthfulness

of the children. In State v. Boston,

,

(1989), the

Supreme Court of Ohio ruled that it is improper for a witness to testify that a child

victim was telling the truth or not engaging in fantasies. However, a review of the

social worker’s testimony shows that she did not vouch for the children’s

truthfulness. She testified as to what she asked the children and what she

recommended for a further course of action. She said that she took what the

children said at face value (Tr. 397.) The testimony was far from opining on the

children’s veracity, as it was in Boston. State v. Cashin, 10th Dist. Franklin No. 09AP-367,

. Moreover, this was a trial to the court, “and it is

presumed that the trial judge follows the rule of evidence and renders a decision on

the proper evidence.” State v. Atwater, 8th Dist. Cuyahoga No. 107182, 2020-Ohio-

484,¶ 15, and State v. Campbell, 8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-

Ohio-2181. Thus, appellate counsel, in the exercise of professional judgment,

properly declined to make this argument.

The investigating detective interviewed the children and recorded

that interview, from which a report was made. On cross-examination, defense

counsel asked the detective whether he asked one of the girls whether she was telling

the truth, as stated in his report. The detective then revealed that he did not write

up the report, but rather told Detective Feldman whom he was training to prepare

the report based on the recording. Defense counsel objected to the report because

the detective did not prepare it. The prosecution offered to play the video, and the

trial judge said, “That’s fine.” (Tr. 518-519.)

From this exchange, Harris argues that his trial counsel failed to

investigate Detective Feldman’s statement and failed to subpoena him to establish

that the arrest warrant was made in reckless disregard of the truth. This argument

is meritless. The interview with the girls, recorded via video, in which they related

various improper acts perpetuated on them by Harris, provided probable cause for

Harris’s arrest.

Next, Harris argues that his trial counsel was ineffective for failing

to call Latasha Evans as a character witness. He asserts that Evans was the mother’s best friend and present in the home on the day of the last incident. Furthermore,

Harris claims that she was scheduled to testify, but his trial counsel told her not to

come. He claims that her testimony would have changed the outcome of the verdict,

but does not specify what the testimony would have been, much less where in the

record the proffer was made. Without knowing what the testimony would have

been, all appellate counsel could have done was speculate on what the testimony

would have been. This is insufficient for making an appellate argument. State v.

Addison, 8th Dist. Cuyahoga No. 90642,

, reopening disallowed,

. Moreover, the “decision whether to call a witness is generally a

matter of trial strategy and, absent a showing of prejudice, does not deprive a

defendant of effective assistance of counsel.” State v. Krzywkowski, 8th Dist.

Cuyahoga Nos. 83599, 83842, 84056,

. Accordingly,

appellate counsel in the exercise of professional judgment properly declined to argue

this point.

Harris also claims that his appellate counsel should have argued that

he was denied his right to a speedy trial, especially when he did not authorize his

attorney to request or consent to any continuances. In fact, he objected to further

continuances.

R.C. 2945.71(c)(2) requires that the state bring a person charged with

a felony to trial within 270 days after the person’s arrest. Under subsection (E), each

day the person is held in jail counts as three days. However, this time period may

be waived, extended, or tolled under R.C. 2945.72. Subsection D provides that the time may be extended by “[a]ny period of delay occasioned by the neglect or

improper act of the accused.” Similarly, any “delay necessitated by reason of a plea

in bar or abatement, motion, proceeding, or action made or instituted by the

accused” tolls the period. R.C. 2945.72(E). Finally, subsection (H) provides that the

period is tolled by “any continuance granted on the accused’s own motion, and the

period of any reasonable continuance granted other than upon the accused’s own

motion.” Thus, any continuance granted at the defendant’s request tolls the period.

State v. Brelo, 8th Dist. Cuyahoga No. 79580,

, and State v. Ferrell,

8th Dist. Cuyahoga No. 93003,

. The court further notes that

defense counsel’s actions in waiving the time period is attributable to the defendant,

even if the defendant did not consent to the waiver. State v. McBreen,

,

(1978).

Harris never made bail, so each day is subject to the triple-count

provisions. If he can establish that more than 90 days elapsed after allowing for all

waivers and extensions, his claim may have merit. The time for speedy trial begins

to run when the accused is arrested, but the actual day of arrest is not counted. State

v. Canty, 7th Dist. Mahoning No. 08-MA-1565,

.

Harris was arrested on June 27, 2018. Twenty days elapsed until the

first pretrial on July 17, 2018. From that date until November 5, 2018, there is an

unbroken series of pretrials that are continued at the request of the defendant

because of ongoing discussions between defense counsel and the state. At the

November 5, 2018 pretrial, trial was set for January 22, 2019, at defendant’s request. On January 22, 2019, the court considered various matters, including Harris’s

voluntary waiver of a jury trial. Trial started on January 23, 2019. Thus, pursuant

to the law and allowing for all the continuances, only 21 days of the 90 days elapsed

for speedy trial purposes. Thus, appellate counsel properly rejected this argument.

Harris endeavors to eliminate the “continuances at defendant’s

request” by arguing that he objected to such continuances and denied consent to

them. On August 30, 2018, he filed a pro se motion to deny consent to any

continuances and another pro se filing objecting to all continuances. Therefore, he

argues that his trial counsel ignored his instructions, frustrated his desire for a

speedy trial, and entered into unreasonable continuances. Recalculating the time

without the continuances would show that he was denied his right to a speedy trial.

The courts of Ohio have held that defense counsel’s request of

continuances bind the defendant even when the defendant has informed the

attorney and the court that he would not assent to such delays. State v. Taylor,

,

,

; State v. Kelly, 8th Dist. Cuyahoga

No. 102413,

; and State v. Westly, 8th Dist. Cuyahoga No. 97650,

. Only if the defendant can show that the continuances were

unreasonable might a court consider disallowing them for purposes of speedy trial

calculation. In the present case, the court notes that Harris faced 19 serious counts,

some of which carried life sentences, that DNA testing needed to be done, and that

supplementary discovery was filed from September 2018, through the eve of trial on

January 22, 2019. Harris does not support his contention that the continuances were excessive or unreasonable beyond his mere statements. Following the

admonition of the Supreme Court, this court will not second-guess appellate

counsel’s decision not to argue Harris’s speedy trial contentions.

With regard to the trial judge assigned to this case, the record reflects

that in State v. Harris, Cuyahoga C.P. No. CR-13-576517-A, Harris pled guilty to

drug trafficking, drug possession, and possession of criminal tools, before the same

trial judge as the instant case. In January 2014, the trial judge sentenced Harris to

two years of community control. By his own admission, Harris violated community

control, and in May 2014, the trial judge issued a capias for him. Harris was taken

into custody in February 2018. At the probation department’s request, the trial

judge on March 9, 2018, terminated Harris’s probation and ordered him released.

The docket of CR-13-576517-A shows that matters concerning court costs continued

into at least June 2020. On July 10, 2018, the same trial judge was assigned

manually to the instant case.

From this, Harris proposes several more arguments. First, his trial

counsel “was ineffective for failing to have the judge recused from the case due to

the probability of confirmation bias and mistrust from when Mr. Harris absconded

[the judge’s] probation in previous case * * *.” (Pg. 6 of the July 16, 2020

application.) Second, appellate counsel should have argued that the trial judge was

improperly assigned to the instant case. As an alternative to this argument, he adds

that his appellate counsel should have argued the ineffectiveness of trial counsel for

allowing a bench trial pursuant to an improper assignment. Loc.R. 30.0 Court of Common Pleas of Cuyahoga County, General Division; Sup.R. 36.01(B); and Sup.R.

36.011(C)(1)(b) provide that a case shall be assigned to a judge by lot unless the case

involved a person who is currently on probation before that judge. Harris concludes

that because he was not on probation before the judge, it was improper to assign his

case manually to the judge.

The state counters by noting that although Harris’s probation had

ended, his earlier case was still active because of court costs and by questioning

whether the scope of the assignment rules extends to “active” cases with outstanding

court costs. Nevertheless, assuming arguendo that the instant case was improperly

assigned to the judge, it is difficult to discern that the judge held any animus against

Harris. The judge ended Harris’s community control and released him. The judge

granted acquittal per Crim.R. 29 on two counts and found Harris not guilty on eight

counts. He also imposed concurrent sentences.

Moreover, the Supreme Court of Ohio has ruled that if the trial court

has subject-matter jurisdiction over a case, an improper assignment renders the

verdict voidable, not void. The failure to object at any time during the proceedings

waives the issue for purposes of appellate review. In re J.J.,

,

,

. This court affirmed this principle in State

v. Judd, 8th Dist. Cuyahoga No. 89278,

. Harris has not indicated

where in the record he objected to the judge’s assignment. Nor has this court found

such an objection. Indeed, Harris waived his right to a jury trial, consented to the

judge hearing the case, and stated he was comfortable with doing that. (Tr. 23.) It was trial counsel’s apparent strategy to try the case to the judge

instead of a jury. It is understandable that appellate counsel would not want to raise

the issue of improper assignment indirectly through the lens of ineffective assistance

of trial counsel. He would have to establish that that the strategy was wrong.

“Debatable strategic and tactical decisions may not form the basis of a claim of

ineffective assistance of counsel, even if a better strategy had been available.” State

v. Krzywkowski, 8th Dist. Cuyahoga Nos. 83599, 83842, 84056,

. Following the admonition of the Supreme Court, this court will not second-

guess appellate counsel’s decision not to argue issues that are not preserved in the

record, that have a questionable basis, and for which it is difficult to discern

prejudice.

Harris also asserts that his appellate counsel should have argued that

the trial court erred in refusing to rule on various motions during the course of the

case. He invokes Crim.R. 12 that motions shall be determined before trial. Harris

specifically refers to three pro se motions: (1) his motion to object to all

continuances, (2) his motion to dismiss due to speedy trial violations, and (3) his

motion for a new trial. However, Harris was represented by counsel when he “filed”

these motions. The Supreme Court of Ohio has clarified that hybrid representation

is not permitted in Ohio. A defendant represented by counsel, may not be co-

counsel in his own defense. State v. Martin,

,

,

. The corollary to this hybrid representation rule is that “when

counsel represents a criminal defendant, a trial court may not entertain defendant’s pro se motion.” State v. Mongo, 8th Dist. Cuyahoga No. 100926,

,

¶ 14.

The children’s mother took the three sisters to the hospital the day

following the final incident. The testimony at trial shows that the oldest sister was

wearing different underpants that day than what she wore during the final incident.

Because of the possibility of contact transmission, the underpants the oldest sister

wore to the hospital were tested for DNA. The swab taken from the crotch area of

those underpants showed a mixture of male DNA from two males. However, there

was insufficient DNA to identify any particular man as a contributor. The

underpants the oldest sister wore during the final incident could not be found and

were not tested. During closing argument, the prosecutor stated that Harris could

be a contributor to the DNA found on the underpants the oldest sister wore to the

hospital, given the testimony that he had touched the oldest sister’s vaginal area the

previous day.

From this Harris argues that because the DNA did not positively

identify him as a contributor, it was improper for the prosecutor to present

misleading evidence and to indulge in innuendo that the male DNA could be his. He

further argues that his trial counsel should have moved to suppress this DNA test

and was ineffective for failing to investigate the original pair of underpants and have

those tested for DNA.

The DNA test showing male DNA from the crotch of the oldest sister’s

underpants worn on the day after the last incident was relevant evidence under Evid.R. 401. It made the allegation that Harris had touched the oldest sister’s

vaginal area more probable, even if it could not identify him specifically. The

testimony was clear about how the DNA could have been transferred. The testimony

was clear about what it was and what it was not. The prosecutor did not present

false or misleading evidence and did not address it in a misleading manner during

closing argument. Moreover, in a bench trial, the trial judge is presumed to follow

the rules of evidence and decide the case on the proper evidence. Atwater, supra,

¶ 15. Appellate counsel in the proper exercise of professional judgment could decline

not to argue this issue.

Harris’s arguments that his trial counsel was ineffective for not

obtaining and then testing the underpants the oldest sister wore the day of the final

incident are also unfounded. A trial counsel’s decision on what to investigate and

what not to investigate are strategic and tactical decisions, weighing the possibility

that such an investigation might uncover evidence that further inculpates the

defendant. Moreover, the state was unable to locate the underpants. It is doubtful

that defense counsel could have done so.

Accordingly, this court denies the application to reopen.

MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR