IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

vs.

Plaintiff-Appellee,Case No.

On Appeal from the C vAHOaACounty Court of Appeals` 8 tFi Appellate District

DAVID JOHN BROWN

C.A. CaseNo.9'2814Defendant-Appellant. COMMON PLEAS CASE#CR-0S-509535

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT DAVID J BROWN

DAVID J BROWN#562-401NAME AND NUM6ER

TRUMBULL CORRECTIONALINSTITUTIONINSTITUTION

PO BOX 901ADDRES

LEAVITTSBURG - OHIO 44430

CITY, $TATE & Z6

PHONE

DEFENDANT-APPELLANT, PRO SE

WILLIAM MASON; CUYAHOGA COUNTY PROSECUTORPNOSECUTOR NAM1ff

1200 ONTARIO ST.ADD0.ESS

CLEVELAND,OHIO 44113CTT. STArE & zIP

PHONE

COUNSEL FOR APPELLEE, STATE OF OHIOKRISTEN SOBIESKI

ASSISTANT PROSECUTING ATTORNEY

VEDFEB 2 4 2011

CLERK OF COURTSUPREME COURT OF OHIO

S

L-1

Cd.ERViCo COURTPLME CC'URT GF CFIIO

TABLE OF CONTENTS

Paee No.

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION .................................................................................................... 1

STATEMENT OF THE CASE AND FACTS . ................................................................................. 2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ............................................................ 3

PROPOSITION OF LAW : .. .. :.:...................:......................................:..:....:.................................... 3-14

CONCLUSION ................................... ... --..........................................................................................14

CERTIFICATE OF SERVICE ... .......................................................................................................1.5

APPENDIX

Judgment Entry and Opinion, Court of Appeals, CUYAHOGA County,( DATE ) ...................... ............ ............. .................................. .............. ...................... A- I

ALLSO SEE B-1 & B-2

PROPOSITION OF LAW 1: .......•...• .......................•3-7

Trail counsel provided ineffective assistance by failing to bifu-

cate the weapon under disability charge and by stipulating to thegun powed residue report because the failures deprived mr brownof a fair trail.

PROPOSITION OF LAW 2- ..................................... 7-8

The trail court denied mr,brown his due process rights by denying

mr,brown motion for acquittal because the evidence is insufficie-nt to support the quilty verdict for attempted murder.PROPOSITION OF LAW 3 :..................................... 8-10

Finding mr,brown quilty of attempted murded and felonious assaultis against the manifest weight of the evidence.

PROPOSITION OF LAW4:..................................... 11-12

The trail court erred by sumrnarily denying appellant-defendant

david j browns motion for new trail with-out considering the rne-r-

its and without conducting a hearing.

PROPOSITION OF LAW 5;-- .................................... 12-14

When new evidence material to the defense was discovered, whichthe defendant could rot with reasonable diligence have discoveredand produced at trail.

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTION QUESTION.

This case should be heard because it reveals the right to eff-

ective assistance of counsel during a felony trail hearing under

the 6th amendment and the 14 th amendment to the constitution,fu-

rthemore,courts have long recognized that the right to counsel

is in fact the right to the effectiveness of assistance of cou-

nsel,the facts that counsel be preparded to assist the client for

his defenses in the court room,and the accused has had a fair tr-

ail and that substantial justice is done.powel v, alabama 287 us

45,53 s.ct 55,58 (1932).Consequently,the courts have developed

a two-prong to test to determine,of effective assistance of coun-

sel or an inquiry into wheather the defense was prejudiced by

counsels ineffectiveness.strickland v. washington 466 u.s 668(

1984). in mr browns case if counsel was effective at the trail

level the out come of this case would have been diffent.however

,in this case the court of appeals:denied appellant the opportun-

ity to cure his erroneous convictioNon the merits of this case

THIS(.'-IS A PUBLIC INTEREST because it involves waiving profession-

al testimony by paid counsal deprived mr brown a fair trail

a constitutional right.wainwright v, torna ,455 u.s 586,587-588,

102 s.ct 1300,1301-1302,71 l.ed.2d 475(1982).this is a violation

of mr,browns 6th & 14th under ineffective assistance,and due pro-

cess for an right to appeal,THIS IS A PUBLIC INTEREST,BECAUSE

THE OHIO SUPREME COURT DOES NOT HEAR CRIMMAL CASE IS UNCONSTITUT-

IONAL AND THE PUBLIC SHOULD NO THAT YOU DO NOT HAVE A RIGHT TO BE

HEARD AT 'PHIS LEVEL.ross v. moffit,417 u.s. 600,94 s.ct,2437, 41

i.ed.2d 341 as of right; in which he does.

1

STATEMIENT OF'I'HE CA§E AND FACTS

On April 2008, the grand jury indicted Defendant-Appellant David Brown,

hereinafter "Appellant;" with attempted murder, in violation of R.C. 2923.02 and R.C.

2903.02(A), with firearm specifications; two counts of felonious assault, in violation of

R.C. 2903.11(A)(1) and R.C. 2903.11(A)(2), with firearm specifications; and having

weapons while under a disability in violation of R.C. 2923.13(A)(3) in Cuyahoga Case

No. CR 509535 (Opinion).

At his arraignment, Appellant entered pleas of not guilty and his case was

assigned to Judge Joseph D. Russo. A jury trial commeneed and the jury found Appellant

guilty of all four counts as charged, and all of the firearm specifications. The trial court

merged counts 1, 2; and 3, as well as the firearm specifications. The trial court merged

counts 1, 2, and 3, as well as the fireatm specifications, for purposes of sentencing and

sentenced Appellant to five years in prison for the merged counts, five years for count 4,

and three years for the firearm specifications. The court ordered that the sentences be

served concurrently, but consecutive to the three years for the firearm specifications, for

an aggregate eight year prison term along with five years of postrelease control

(Opinion).

Appellant filed an appeal and his convictions and sentence were affirmed in CA

No. 92814. on March.8, 2010.

Appellant filed a pro se Motion for New Trial and pro se Motion for Leave to File

for a New Trial on May 21, 2G10. T'he trial court denied Appc:ia,:,t's Motion for T_,eav:, to

file Motion for a New Trial on June 4, 2010 without giving a reason.

2

PROPOSTION OF LAWLaw and Argument

1. Trial counsel provided ineffective assistance by failing to bifurcate the weaponunder disability charge and by stipulating to the Gun Powder Residue Reportbecause the failures deprived Mr. Brown of a fair trial.

In all criminal prosecutions an accused has the right to the effective assistance of counsel.18

The attomey must perform effectively or the right to counsel is deprived of its meaning and

value.19 The standard for attorney performance is that of reasonably effective assistance.20 The

attorney's performance is ineffective when it is deficient-i.e., when it falls below an objective

standard of reasonableness-and the deficiency prejudices the defendant so as to deprive him of

a fair trial or hearing.21 A defendant is prejudiced if a reasonable probability exists that the result of

the proceeding would have been different, but for the attorney's errors?2

18 Strickland v. Washington (1984), 466 U.S. 668, 686; Sixth Amendment, United States Constitution;and Art. I, Sect. 10. Ohio Constitution.

19 1d.

20 United States v Cronic (1984), 466 U.S. 648, 65, quoting Avery v. Alabama (1940), 308 U.S. 444, 446.

21 Id.

22 Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984)

3

a) Trial counsel's failure to bifurcate prejudiced Mr. Brown because the failure gavethe state an opened through with which to attack Mr. Brown using his felony record.

Ohio has established procedures for bifurcating charges.23 Even when prior bad acts or past

felonies would otherwise be admissible, the court can bar them from being entered into evidence

if the prior convictions or bad acts are more prejudicial than probative24 Of course where the

evidence is essential to proving an element its probative value trumps any prejudice. Such is true

in a weapons under disability case based on the felony being the disability. It, however, is not true

in an attempted murder case that has no relation to the past felony. Especially where the nature of

the bad act or felony would prejudice the defendant. So, the essential question is what strategic

advantage would a defendant gain from trying an attempted murder charge and a weapons under

disability charge together.

In Mr. Brown's case, the answer is that trial counsel gained nothing, and in fact, Mr.

Brown's defenses were undermined. Not seeking bifurcation prejudiced opened the door to Mr.

Brown's felony record. The jury did not need Mr. Brown's prior record or bad acts to consider

questions of fact, and as such the evidence clearly had no significant probative value. Consequently,

Mr. Brown suffered real harm from the undue prejudice that existed once the jury knew that he

was a convicted felon before any testimony was given. Accordingly, no strategic value existed in

arguing it to the jury. Compounding to his inexplicable decision, trial presented no defense or

affirmative defense to the weapon under disability charge.

23 R.C. § 2941.04.

24 Evid.R. 609(A)(2). Evid.R. 403(8).

4

b)Trial counsel's stipulating to gun powder residue test results abrogated Mr. Brown'sSixth Amendment Right to confrontation which undermined Mr. Brown's self-

defense claim.

The United States Supreme Court recently held admission to a jury, over objection by the

defense, of the written lab results, of tests conducted by the state, on evidence in the case is a.

violation of the confrontation clause 25 In Melendez-Diaz, the Court was asked to determine

whether submissions of three "certificates of analysis" showing the results of the forensic

analysis performed on a seized substances violated the defendant's right of confrontation under

the Sixth Amendment.26 The Court ultimately agreed with the defense and stated, "[i]n short,

under our decision in Crawford the analysts' affidavits were testimonial statements, and the

analysts were "witnesses" for purposes of the Sixth Amendment.27 Absent a showing that the

analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-

examine them, petitioner was entitled to "`be confronted with"' the analysts at trial.28

The Court's Melendez-Diaz decisions underscores the importance of confrontation of the

evidence in a trial and highlights the cost of Mr. Brown's trial counsel's stipulating to the

admissibility gun powder test results ("Test Results") solely to save time.29 Trial counsel

abrogated Mr. Brown's Sixth Amendment right to confront all of the evidence against him was

violated and gave away the opportunity to explain the importance of the Test Results to the jury.

25 Melendez-Diaz v. Massachusetts (2009) 557 U. S. Opinion of the Court.

26 Id.

27 Id.

28 Id. citing; Crawford, supra, at 54.

29 Transcript at 91: 15-18

5

Mr. Brown claimed he acted in self-defense and that, in fact, the victim himself had fired

a weapon at him. During the trial the jury was presented with a copy of the Test Results prepared

by Donna L. Rose of the State of Ohio's Bureau of Criminal Identification and Investigation. By

stipulating to the Test Results' admissibility trial counsel undercut his own defense; because he did

not require the state to have Ms. Rose to testify about the Test Results and the import of those

results they related to Mr. Brown's own theory of the case.

The Test Results indicated that Mr. Brown and two other people, Troy Clark and

Cleveland Blade, were positive for "particles highly indicative of gunshot primer residue."30 A

number of samples were taken from Mr. Clark and Mr. Blade. All of the samples taken from Mr.

Clark and one of the samples from Blade were positive.31 Because of the stipulation by the

defense, the Test Results were admitted to the jury without further explanation.

The jury got the result cold but what the jurors were not privy to the ffirther explanation

of the meaning behind the positive tests mean. Specifically, the outcome of the trial it is likely

the outcome would have been different if the jury would have been told by a forensic scientist

that the positive results for gunshot primer from his samples could have come from Mr. Blades

close proximity to the victim in this case. A victim who Mr. Brown testified fired a weapon at

him shooting past Mr. Blade's head 3Z

Trial counsel missed his opportunity to give the jury the necessary facts that they needed

to determine the validity of the Mr. Brown's self-defense claim. Consequently, Mr. Brown's right

30 State's Exhibit 55.

31 Id.

32 Id.

6

to confront had been waived away along with his hope for a meaningful defense. It was given up

not for strategic advantaee, but out of expediency.PROPOSTION OF LAW

II. The trial court denied Mr. Brown his due process rights by denying Mr. Brown'sMotion for Judgment of Acquittal because the evidence is insufficient to support the

guilty verdict for attempted murder.

A motion for judgment of acquittal challenges the sufficiency of the evidence to support a

verdict. The Due Process Clause requires the state to prove every element of the crime charged

beyond a reasonable doubt.33 Evidence is legally sufficient to support a conviction consistent

with due process if, "after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt."34 The determination of whether the evidence is legally sufficient to sustain a

verdict is a question of law.35 Once the court of appeals finds that the trial court committed

prejudicial error the court of appeals is to render the appropriate judgement and remand the case

to the trial court36

Here, the testimony was clear that all the witnesses who were involved in or witnessed

the shooting believed that the victim in this case was about to pull a weapon from his belt.

Moreover, the evidence points to a retreating defendant firing a gun at the same time. The

evidence also points to the wildly firing and erratic movements by Mr. Brown.

33 In re Winship (1970), 397 U.S. 358, 364; see also State v. McGee (1997), 79 Ohio St 3d 193, 196-97;State v. Robinson (1976), 47 Ohio St. 2d 103, 108.

34 Jackson v. Virginia (1979), 443 U.S. 307, 319; see also State v. Jenks (1991), 61 Ohio St. 3d 259,

paragraph two of the syllabus.

35 State v. Thompkins (1997), 78 Ohio St.3d 380, 386.

36 App. R.12(B)[App H]

7

The trial court erred in allowing this count to go to the jury because the state failed to

prove that Mr. Brown acted with the culpable mental state of "knowingly" or "purposely"

attempting to cause the death of the'victim who was injured in this unfortunate shooting.37 Mr.

Brown's.retreating aotions belie the contention that he was intending to take a life but was

intending to ward-off what he reasonably perceived to be an imminent attack on him and protect

his son in the process.

PROPOSTION OF LAWIII. Finding Mr. Brown guilty of attempted murder and felonious assault is against the

manifest weight of the evidence.

Mr. Brown was found guilty of aggravated murder against the manifest weight of the

evidence. Although an appellate court may find that a conviction is supported by sufficient

evidence, it may still reverse the conviction as against the manifest weight of the evidence.38 In

reviewing a conviction for manifest weight, the appellate court "sits as a thirteenth juror,"39 and

"[r]eview[s] the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury

[or, in the case of a bench trial, the trial court] clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered."0 The issue

to be resolved in a manifest weight challenge is whether "there is substantial evidence upon

which a jury [or trial court] could reasonably conclude that all the elements have been proved

beyond a reasonable doubt."41 In a manifest weight challenge, "the reviewing court asks whose

37 See RC § 2903.02(A).

38 Thompkins, 78 Ohio St. 3d at 387.

39 Tibbs v. Florida (1982), 457 U.S. 1, 42.

40 State v. Williams (1999), 99 Ohio St. 3d 493, 504 quoting State v. Martin (1983), 20 Ohio App. 3d 172,

paragraph three of the syllabus; see also Thompkins, 78 Ohio St. 3d at 387.

41 State v Monroe (2005), 105 Ohio St. 3d 384, at ¶52 (emphasis in original).

8

evidence is more persuasive-the state's or the defendant's?"42

In the present case, Mr. Brown requests this Court review the entire record, weigh the

evidence and all reasonable inferences, and consider the credibility of the witnesses. In addition,

Mr. Brown respectfully asserts that the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered."

Also, Mr. Brown raised the affirmative defense of self-defense and defense of others.

Specifically, Mr. Brown was acting to defend himself and protect his son who was in the front

yard of the home.

The Seventh District Court of Appeal succinctly set forth the difference between analyzing a

sufficiency and manifest weight arguments:

Normally an affirmative defense can only be addressed in a manifest weight argument,not a sufficiency analysis, because proof supportive of an affirmative defense cannotdetract from proof beyond a reasonable doubt that the accused had committed the

requisite elements of the crime.43

Here, the testimony was clear that more witness's than just the testifying defendant

believed that the victim in this case was about to pull a weapon from his belt. However, it was

also evident from the jury's deliberation that there were great concems that the defendant had

room to retreat. However, the presence of the defendant's son on the scene certainly changed the

dynamic for the defendant.

Here the evidence points to a retreating defendant firing a gun at the sarne time. The

evidence also points to the wildly firing and erratic movements by the defendant. Looking at the

42 State v. Wilson (2007), 113 Ohio St. 3d 383, 387.

43 State v. Haslam, 2009-Ohio-1663 at 87,51 citing State v. Hancock,108 Ohio St.3d 57, 2006-Ohio-160,

840 N.E.2d 1032, at ¶37 (internal citations omitted).

9

evidence look at the evidence and where the greater weight lies for this defendant it is clear that

there is not great evidence to show that the defendant "knowingly" or "purposely" attempted to

cause the death of the victim who was injured in this unfortunate shooting. Mr. Brown's

retreating actions belie the contention that he was intending to take a life but was intending to

prevent an imminent, violent attack which he reasonably believed about to occur.

Each of the individuals who witnessed the actual altercation and shooting, claim that Mr.

Doss either had a gun or appeared to be going for a gun as he approached Mr. Brown.

Consequently, while there is conflicting testimony as to whether Mr. Doss had a gun, there is no

question it appeared that Mr. Doss was pulling a gun on Mr. Brown. And there was good reason

for Mr. Brown to believe Mr. Doss had a gun because Mr. Doss had tried to sell him one.

10

IV PROPOSTION OF LAW

CONSIDERING THE MERITS AND WITHOUT CONDUCTING A

THE T'RLAL COURT ERRED BY SUMMARILY DENYING APPELLANT-DEFENDANT DAVID BROWN'S MOTION FOR NEW TRIAL WITHOUT

is a pro se, that the allegations therein should be treated as if written in an

Appellant £le a pro se Motien for Leave to File a New Trial. Appellant submits

HEARING.

Affidavit: In his Second Assignment of "Issue," Appellant asserted that the alleged victim

Anthony Doss, had a mental disorder. He also attached a copy of the docket in the case of

State of Ohio vs. Anthony Doss, Cuyahoga Case No. CR 413325. A copy of that docket

indicates that the entry under that case number filed 12/10/2002 that the court ordered

that the Psychiatric Clinic determine eligibility for a mentally disordered offender

(MDO). It further states, when referring to Anthony Doss, that: "Defendant has a

Psychotic Disorder." However, there is no reference in Appellant David Brown's original

appeal, CA No. 92814, to this fact at all. It certainly is an important fact issue as it goes

to credibility. l.his Honorable Court in the opinion in CA No. 928i4 stated: ""w'e have

two rlifferent versions of the 2vents that occurred between Doss and Brown. Thus, it was

a credibility question for the jury to determine." Opinion, p. 19.

Appellant David Brown in his pro se Motion also asserted that that the State's

witnesses, including Christopher Doss, Troy Clark, and Shana Davenport, all receive SSI

11

benefits for mental illness. However, that is not reflected in the record or anywhere in the

ial transcripts. =

Appellant submits that the jury can only make a complete and proper

determination if it has all the facts: If the allegations pertaining to the State's witnesses

have been aware of it, then it is exculpatory evidence and it should have been provided.

mental issues are accurate, Appellant was entitled to have a.nduse this information:

Appellar,t submits that if that information is accurate au-id iie did not use it, that is

ineffective assistance of counsel. If the prosecutor had it or was aware of it or should

would violate Appellant's Fourteenth Amendment and Sixth Amendmentrights under the p

Brady v; Maryland; 373 U.S. 83 (1963). The failure to provide this critical infor•ination

United States Constitution.

Crim.R. 33(A)(6), which governs motions for new trial, provides in pertinent part

as follows:Y PROPOSTION OF LAW

"When new evidence material to the defense is discovered, which thedefendant could not with reasonable diligence have discovered andproduced at the trial. When a motion for a new trial is made upon theground of newly discovered evidence, the defendant must produce *** insupport thereof, the affidavits of the witnesses by whom such evidence isexpected to be given ***."

The Ohio Supreme Court in State v. Petro (1947), 148 Ohio St. 505; 76 N.E.2d

370, in its syllabus held:

To warrant the granting of a motion for a new triai in a criminal case, based on theground of newly discovered evidence, it must be shown that the new evidence (1)disclosc : 3 s+rong probability that it will change the result if a ne- :, trial is g,`.2; has beC , r..-.sw Jered -'iriCe the trial, ;•) '^ auu% as eonlu not in t`,6 ,l :'c15:?. ^.

due diligence have been discovered before the trial, (4) is material to the issues,(5) is not merely cumulative to former evidence, and (6) does not merely impeachor contradict the former evidence.

12

Since then, Ohio courts have modified the (1) requirement under Petro. In Kyles

v. WhitleV (1995), 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed: 2d 490, the United States

Supreme Cortrt articulated a test different from that articulated in Petro, that is; the

ouchstone of materiality is a "reasonable probability" of a different result. Kyles at

paragraph one of the syllabus. The question is not whether the defendant would 0 e

likely than not have received a different verdict with the evidence, but, whether, in its

absence, he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence. Id. A"reasonableprobability" of a different result is accordingly shown

tcomee ou

of the trial." Id. We note this very issue was raised in D'Ambrosio, supra, which utilized

the "reasonable probability" standard with a nod toward Ohio's 62-year old "strong

probability" standard articulated in Petro (and used by the lower court in this case) as

perhaps being at the very least outdated, and more probably, overruled. See D'Ambrosio

at fn. 5.

In State v. Siller, 2009-Ohio-2874, this Eighth District Court of Appeals held that:

"We find consistent with Petro that there is a strong probability that if the above-omitted

evidence were presented to a jury, there would be a different result. However, we also

believe that the correct test is whether the evidence proffered above 'undermines our

confidence in the outcome of the trial.' Kyles at paragraph one of the syllabus. It does."

Appellant submits that if that evidence about the State's witnesses had been

known before trial, as this caseti:rns solely on tait.: creuibiiity of the wrtness^^, t'xa+ dhcre

would have been a different outcome or at least confidence in the outcome of the trial.

Furthermore, it could not have not been discovered before the trial as there is no

13

indication that the State provided it to the defense and that would be information known

only to the State.

The trial court in this case summarily dismissed Appellant's motion for new trial.

It did so without a hearing. InToledo v. Stuart (1983), 11 Ohio App.3d 192, the court

held that if a defendant fails to produce the supporting affidavits required by Crim:R.

33(C), a court may sutnir,arily dismiss a motion for a new trial, without conducting a

hearing. On the contrary, Appellant submits that he filed his Motion for New Trial pro se,

that the issues raised therein should be treated as ones raised in a form Affidavit.

Therefore, the trial court should have not summarily dismissed it without a hearing: This

was an abuse of discretion;

CONCLUSION

WHEREFORE DAVID J BROWN ASK THIS COURT TO rtr:Vciko_ THE JUDG-

MENT AND REMAND THIS CASE FOR A NEW TRAIL,OR ALTERNATIVE,ENTER

A JUDGMENT OF ACQUITTAL DO TO THE CONSTUTIONAL VIOLATION UNDER

THE 6th & 7th AMENDMENT. ENEFFECTNESS OF COUNSEL AND DUE PROCESS.

ESQUIRE-USES A SYSTEM OF UNEQUAL PROTECTION UNDER A DIFFENT SET

OF LAWS,IN THE COURT OF COMMON PLEAS HIS ALLEGIANCE IS TO THE

CROWN FIRST rAND HIS CLIENT IS HELD LASTrTHUS GIVING MEANINGLESS

LEGAL FICTION,IN WHICH HIS CLIENT IS FACING CHARGESiA CONFLICK OF'

ENTEREST SINCE THE ATTORNEY IS UNDER CONTRACT WITH THE COURT THAT

HOLD CHARGES AGAINST ITS CLIENT,UNDER STATUTARY LAW MONEY OBLAGA-

TION/BONDS FOR A CONVICTION IS UNCONTUTIONAL AND A 6th&7th

amendment violation/ contracted euungh the bar,a

British- Accredited-Registry

A FOREIGN CORPORATION=BAR

14

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum in Support of Jurisdiction was

forwarded by regular U.S. Mail to WIZZIAM MASON , Prosecuting Attorney,

DAVID J BROWN #562-401

NAIv1E ^ NIIIrBER

DEFENDANT-APPELLANT, PRO SE

15

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

vs.

Plaintiff-Appellee,

DAVID J BROWN

Defendant-Appellant.

Case No.

On Appeal from the i u4;lhogaCounty Court of Appeals8 th Appellate District

C.A. CaseNo.92814common pleas case#CR-08-509535

APPENDIX TO

MEMORANDUM IN SUPPORT OF JURISDICTION

OFAPPELLANT DAVID J BROWN

Case No: 92814

STATE OF OHIO VS. DAVID J.BROWN, SR.

APPLICATION BY APPELLANT,PRO SE, FOR REOPENINGPURSUANT TO RULE 26(B) ISDENIED.

JONES, L., J., CONCURGALLAGHER, S., J., CONCURKILBANE, M., P.J.

Eighth Appellate DistrictOne°Lakeside Ave.Cleveland, Ohio 44113Date: 01/11/2011

TO:DAVID J. BROWN, SR.INMATE NO. 562-401TRUMBULL CORRECTIONAL INST.P.O. BOX 901LEAVITTSBURG, OH 44430

^1CAurt of Rppeaft; oEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 92814

STATE OF OHIO

bio

PI.AINTIFF-APPELLEE

vs.

DAVID'J. BROWN, SR.

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-509535

BEFORE: Boyle, J., Gallagher, A.J., and Blackmon, J.

RELEASED: February 25, 2010

JOURNALIZED:

MARY J. BOYLE, J.:

Defendant-appellant, David Brown, appeals his convictions for attempted

murder, felonious assault, and having a weapon while under a disability. He

raises three assignments of error for our review:

"jl.] Trial counsel provided ineffective assistance by failing to bifurcate the

weapon under disability charge and by stipulating to the Gun Powder Residue

Report because the failures deprived Mr. Brown of a fair trial,

"[2.1 The trial court denied Mr. Brown his due process rights by denying

Mr. Brown's Motion for Judgment of Acquittal because the evidence is

insufficient to support the guilty verdict for attempted murder.

"[3.] Finding Mr. Brown guilty of attempted murder and felonious assault

is against the manifest weight of the evidence."

After reviewing the record and pertinent law, we find no merit to Brown's

assigned errors and affirm.

Procedural History and Facts

In April 2008, the grand jury indicted Brown with attempted murder, in

violation of R.C. 2923.02 and 2903.02(A), two counts of felonious assault, in

violation of R.C. 2803.11(A)(1) and (2), and having weapons while under a

disability, in violation of R.C. 2923.13(A)(3). The attempted murder and

-2-

felonious assault charges also had one- and three-year firearm specifications

attached. The following evidence was presented at the jury trial.

The victim, Anthony Doss, testi-fied that in April 2008, he was living with

his mother on East i91g` Street in Cleveland, Ohio. He became friends with

Brown in 2007 when Brown and his wife, Nora, moved into the house across the

street. The Browns introduced Doss to Leothia Scott, who worked with Nora.

Doss and Scott began dating after that.

According to Doss, his friendship with Brown and Nora began to

deteriorate when Brown asked Doss to take responsibility for a condom that

Nora found in their home. The condom belonged to Brown, but Doss agreed to

take the blame for it. After that, Doss stated that he did not feel comfortable

being around Nora, and so he stopped going to the Browns' home.

In the middle of the afternoon in April 2008, Doss explained that he was

on the sidewalk in front of his house when Brown yelled to Doss from his porch

across the street, "I can't help it if you fucked things up with your bitch." Doss

became angry at what Brown said about his "woman" and was "ready to start a

fight." Doss began to walk toward Brown's house and as he did, he pulled his

cell phone off of his belt to put it in his pocket and began to take off his shirt to

fight. But when Doss got to the middle of the street, Brown came "down off of

his porch, reach[ed] in his back, and pulled out a gun and started shooting."

-s-

^

Doss believed Brown shot at him "about six times"; Doss was hit three times, in

both legs and in his stomach, Doss said he turned around and "slowly walked"

back to his house, and Brown shouted to him, "you don't walk up on nobody,

Tone."

Doss further stated that when he got back to his porch, he could see Troy

Clark, who was standing on Brown's porch durusg the shooting, run "around the

side" of Brown's house. Doss also saw Cleveland Blade, standing behind Brown's

truck (parked on the same side of the street as Doss's house) with a shotgun, but

he did not see Blade shoot the gun.

Doss spent three-and-a-half weeks inthe hospital as a result of being shot.

He said that he gave a statement to Detective Legg when he was in the hospital,

but that he was on heavy medication for pain at that time. Doss further testified

to having three prior drug offenses, and that he spent three years in prison from

2003 to 2006.

Doss testified on cross-examination that he had not had any alcohol prior

to the shooting. Later, when confronted with the fact that his medical records

showed he was "inebriated," Doss first admitted to having "a beer," and then

admitted to having a "couple cans of beer."

.4.

Shena Davenport testified that in April 2008,' she lived on East 141s`

Street. She lived directly across the street from an apartment building, which

was next to Brown's home. Davenport knew Brown from living across the street

from him, but not very well. She did not know Doss at all.

On the day in question, she heard an argument outside her window. She

looked outside and saw Doss and Brown arguing. Brown was standing in front

of the apartment building across the street from her house, and Doss was

standing on the sidewalk on the same side of the street as Davenport's. She

watched as Doss began to walk across the street toward Brown, and "[aJs soon

[as] he started walking across the street[,] [Brown] went in his back of his shirt

***, pulled the gun out and started - pow, pow, pow - started shooting."

Davenport said that she heard five shots, and she did not see Doss with a gun.

She further stated that she saw Brown's son in the front yard when the shooting

occurred.

Samone Matthews, Doss's brother's girlfriend, testified that prior to the

shooting, Brown had been on his front porch with another man and they were

"signifying through music" toward Doss, which she explained meant that they

were directing rap songs in a negative way toward Doss.

`Davenport testified that the shooting occurred in May 2007. But she gave her

written statement to police regarding the incident in April 2008.

.^_

Matthews explained that she was in the kitchen when she heard the first

gunshot. She ran outside and saw Brown pointing a gun at Doss and saw Doss

trying to run around a truck that was parked there. She saw Blade near the

same truck with a "sniper rifle." She only heard three shots; she did not see

Brown shoot the first shot, but she did see him shoot the other two.

Christopher Doss, Doss's brother, testified that he was also in the kitchen

when he heard the shots being fired. He ran out and saw Brown pointing a gun

at his brother but did not see Brown shoot the gun. He saw another man "[i]n

front of a white truck holding a rifle," but he did not know his name.

The state further called Troy Clark as a witness. Clark testified that he

saw Doss with what looked like a gun when he was beside a truck. The state

immediately obtained permission from the court to treat Clark as a hostile

witness because Clark's testimony differed from what he originally told police.

In his statement to police, Clark said that he never saw Doss with a gun. Clark

further told the police in his statement that after the shooting, Brown was

walking around in circles in his backyard, and that Brown told Clark to hide the

gun. Clark testified that he did not remember telling the police that. Clark said

he lied to the police because he was scared. He testified that Brown hid the gun

under the back porch. But Clark said he took the gun from under the porch and

_g_

"threw it behind the garage next door" because he was scared. When police

came, he told them where it was.

Police collected five spent shell casings in front of the apartment building

beside Brown's house and found a Ruger P95DC .9 millimeter gun behind a

garage two houses down from the apartment building. Test results showed that

the shell casings were all fired from the .9 millimeter handgun. Brown's

fingerprints were found on the gun and two live bullets remained in the gun

when it was found. Police also found a spent pellet on the victim's porch that

had blood on it (because it had fallen out of Doss's side where he had been shot).

The spent pellet also corresponded to the spent shell casings.

Detective Darrell Johnson testified that he arrived at the scene about an

hour after the shooting. He processed the scene. He took three gunshot residue

samples from Brown, Clark, and Blade. On cross-examination, he explained

that he did not take one from Doss, however, because none of the witnesses

indicated that Doss had fired a gun or even had a gun that day.

Brown stipulated to (1) the Bureau of Criminal Identification and

Investigation ("BCI") report evidencing that he, Clark, and Blade tested positive

for gunshot residue, (2) the Cleveland Forensic Lab report showing that the

spent casings from test firing the weapon found matched casings found at the

scene. (3) a forensic laboratory report indicating that fingerprints lifted off the

-7-

gun used in the crime matched Brown's fingerprints, and (4) to Brown's prior

misdemeanor conviction for attempted preparation of drugs for sale.

The state rested and Brown moved for a Crim.R. 29 acquittal, which the

trial court denied.

Brown presented three witnesses on his behalf and testified himself.

Nora, Scott, and Brown all testi.fied that on the day of the shooting Scott and

Nora were working together and that Scott and Doss were fighting that morning

because Scott wanted her belongings from Doss. Scott told Doss to give her gold

chain to Brown, but Doss did not know that Scott had talked to Brown.

Nora also stated on cross-examination that Brown called her at work while

he was in the police car and told her that "Lee's boyfriend shot at me." And

Brown later admitted to her that he shot at Doss, but said it was in self-defense.

Robert Blue also testified for Brown. He lived in the apartment building

next to Brown (where the shell casings were found). He said he was talking to

Cleveland Blade on his front steps right before the shooting. Brown was outside

and Doss was on the other side of the street. Brown and Doss were "having

words," and then Doss began to walk across the street toward them. Blue said

that Doss completely crossed the street and was standing in front of his

apartment building. Doss began to take his jacket off, and Brown stepped off the

porch "like he was going to pull off his jacket," but then they both put their

s

jackets back on. Blue said that at that point, Doss said something "menacing"

and "made a gesture li.k.e he was going to pull something out" of his belt. Blue

said when he saw Doss do that, Blue took off running. By the time he got to the

back of his apartment building, he heard the shots.

Brown explained that on the day of the shooting, he and Clark were

hanging out and playing music, b as not "fighting music." Blue and Blade

were also there. Around 2:10 p.m., Brown said that Doss came out and said,

"what's up, dog?" Brown replied, "same shit, different smell." Doss then said,

"I'm crazy. *** I'm tired of people being in my business." Brown said, "happen

to. bring me the chain?" At that point, Doss said, "I'll shoot your ass," and then

Doss fired the first shot. Brown said the shot went right "past Cleveland Blade."

Blade ran, Clark grabbed Brown's son, and Brown said he ducked his head and

shot "down toward the ground." Brown said the first shot was Doss's, but the

next three were his. Brown explained that he was not shooting at Doss, but at

the ground. He testified that he never told police that he shot in self-defense

because he had the right to remain silent.

On cross-examination, Brown admitted that he had previously been

convicted of two felonies, intimidation and felonious assault.

-9-

Verdict and Sentence

The jury found Brown guilty of all four counts as charged: attempted

murder, both counts of felonious assault, having weapons while under a

disability, and all of the firearm specifications. The trial court merged Counts

1, 2, and 3 (the attempted murder and felonious assault convictions), as well as

the firearm specifications, for purposes of sentencing.

The triai court sentenced Brown to five years for the merged counts, five

years for Count 4 (having weapons while under a disability), and three years for

the firearm specifications. It then ordered that the five years for the merged

counts be served concurrently to the five years imposed for Count 4, but that

they be served consecutive to the three years imposed for the firearm

specifications, for an aggregate term of eight years in prison. The trial court

further notified Brown that he would be subject to five years of postrelease

control upon his release from prison.

lneffective Assistance of Counsel

In his first assignment of error, Brown contends that his trial counsel was

ineffective for two reasons: (1) for failing to move to bifurcate the weapons under

a disability charge; and (2) for stipulating to the gun powder residue test results,

claiming that it violated his Sixth Amendment right to confrontation.

To succeed on a claim of ineffective assistance, a defendant must establish

-10-

"both that `counsel's representation fell below an objective standard of

reasonableness,' and that there is a`reasonable probability that, but for couns

unprofessional errors, the result of the proceeding would have been different: "

Smith v. Spisak (2010), 130 S.Ct. 685, 688, quoting Stricklantl u. Washtington

(1984), 466 U.S. 668, 688, 694.

A. Bifurcation

Brown first asserts that his trial counsel's failure to bifurcate the having

weapons while under a disability charge °undermined" his defense because the

"jury knew he was a convicted felon before any testimony was given," and

therefore, he "suffered real harm."

We assume for purposes of argument that Brown is correct that his trial

counsel should have bifurcated the having weapons while under a disability

charge. We nonetheless find no "reasonable probability" that bifurcating the

charge would have changed the outcome of the proceedings. See Spisak, 130

S.Ct. at 685.

Brown was charged with having weapons while ander a disability under

R.C. 2923.13(A)(3), which required proof that he was convicted of "any offense

involving the illegal possession. use, sale, administration, distribution, or

trafficking in any drug of abuse ***." Brown's prior conviction in 2001 was for

attempted drug trafficking under R.C. 2923.02 and 2925.03. it was a first

-^^-

degree misdemeanor, not a felony. Therefore, when Brown claims that "[n]ot

seeking bifurcation *** "opened the door to [his] felony record," that is simply not

the case.'

By not bifurcating the having weapons while under a disability charge, the

jury was privy to the fact that in 2001, Brown attempted to prepare drugs for

sale, and was convicted of a misdemeanor. That means the jury knew before any

testimony was given that Brown allegedly had a gun when he was prohibited

from doing so because of a prior misdemeanor attempted drug trafficking

conviction. In an attempted murder and felonious assault case (especially where

both the victim and the accused were convicted felons), we do not see how Brown

was prejudiced by the jury having this information. Thus, we find that the

outcome of the trial would not have been different if the jury had not known that

Brown had a prior misdemeanor drug conviction and that he was not supposed

to have a weapon.

B. StiAulcttina to Gun Residue Report

Brown next contends that his trial counsel was ineffective for stipulating

to the gun powder residue results because it abrogated his Sixth Amendment

right to confront all evidence against him and "gave away the opportunity to

"Indeed, what. "opened the door to [Brown's] felony record" being heard by thejurs- was his choice to testify, which he had to do since he claimed self-defense. SeeEvid.R. 609(A)(2).

-12-

explain the importance of the test results to the jury." Specifically, Brown

argues that "the outcome would have been different if the jury would have been

told by a forensic scientist that the positive results for gunshot primer from his

samples could have come from Mr. Blades close proximity to the victim in this

case."s He cites Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527, and

Crawford u. Washington (2004), 541 U.S. 36, in support of his argument.

The Sixth Amendment to the United States Constitution guarantees an

accused the right to confront witnesses against him. Crawford at 54. But not

all hearsay implicates the Sixth Amend nt's core concerns. State v. Allen, 8th

Dist. No. 82556, 2004-Ohio-3111, ¶29. "It is the testimonial character of the

statement that separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the Confrontation Clause."

Datn:s v. Washington and Hammon u. Indiana (2006), 547 U.S. 813, 821.

In Melendez-Diaz, a defendant convicted of cocaine trafficking challenged

the admission of a lab report (that identified the seized substance as cocaine)

into evidence, without the in-court testimony from the lab analyst who tested it.

The Melend.ez-Diaz court held that the report was within a"`core class of

testimonial statements,"' that were "`made under circumstances which would

3Although not entirelv clear, it appears that when Brown said "his samples," he

meant Blade's samples, not Brown's.

-^^-

lead an objective witness reasonably to believe that the statement would be

available for use at a later trial: " Id. at 2532, quoting Crawford at 52.

The BCI report showed that Brown, Clark, and Blade tested positive for

gunshot residue. The report noted that "[t]he presence of gunshot primer

residue on a person's hands is consistent with that individual having discharged

a firearm, having been in the vicinity of a firearm when it was discharged, or

having handled an item with gunshot primer residue on it. The absence of

gunshot primer residue on a person's hands does not preclude the possibility of

any of the above stated events."

The gun residue report clearly falls within the ambit of Melendez-Diaz.

Thus, by stipulating to the report, Brown's counsel essentially waived his

confrontation rights.

We assume for purposes of argument that Brown is correct that his trial

counsel was ineffective for stipulating to gun residue report. We nonetheless

fi.nd no "reasonable probability" that having the lab analyst testify to the report

would have changed the outcome of the trial. See Spisak, 130 S.Ct. at 685.

The report noted, inter alia, that a positive test result could indicate that

the person either shot a firearm, or was in the vicinity of a firearm when it was

discharged. Brown testified that he shot the gun, but acted in self-defense,

claini=_ng that Doss fired the gun first. But no spent shell casings were found

-14-

except for the ones that were fired from Brown's gun (the five spent shell casings

that were recovered matched the .9 millimeter gun that had Brown's

fingerprints on it). And all of the spent casings were found in front of the

apartment building - exactly where Davenport (the only objective witness)

testified that she saw Brown standing when he shot Doss five times. Finally,

Davenport did not see Doss with a gun.

Moreover, Brown seems to be arguing that a lab analyst could have

assisted the jury with understanding that the gun residue on Blade's hands

could have come from Blade being near Doss when Doss supposedly shot first.

Thus, Brown claims this could have helped hi.s self-defense claim. But Blue -

one of Brown's witnesses -testified that Blade was standing beside him on the

front steps of the apartment building. This testimony placed Blade closer to

Brown when he shot the gun, not Doss.' Thus, we cannot find the testimony of

the forensic analyst would have assisted the jury in this case such that the

outcome of the trial would have changed.

Accordingly, we overrule Brown's first assignment of error.

'It is hard to decipher from reading the transcript where everyone was standingwhen the shooting occurred. Brown's testimony seemed to try to place Blade nearDoss, but it is not at all clear. At trial, Brown used a drawing or board to illustrate

where B1adeand Doss were standing, but that drawing is not in the record on appeal.

• 15-

Suffici_T J encv.of t1?e Evidence

In his second assignment of error, Brown contends that the trial court

erred by denying his motion for acquittal on the attempted murder charge. He

argues that the evidence on attempted murder was insufficient to support the

verdict against him. We disagree.

An appellate court's function in reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind

of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. "In essence,

sufficiency is a test of adequacy. Whether the evidence is legally sufficient to

sustain a verdict is a question of law." State v. Thompkins (1997), 78 Ohio St.3d

38€1, 386, 678 N.E.2d 541. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable

doubt. Jenks at 273.

Brown maintains that the state did not prove that he purposely attempted

to cause Doss's death because (1) the evidence showed Doss "was about to pull

a weapon from his belt"; (2) Brown retreated while he was firing the gun; and (3)

the evidence pointed to "the wildly firing and erratic movements by Mr. Brown."

-16-

To the extent that Brown's arguments rely on his claim that he acted in

self-defense, those arguments are irrelevant to a sufficiency argument. In a

sufficiency argument, this court is reviewing whether, when viewed in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime were proven beyond a reasonable doubt. Jenks,

supra, at 273. Self-defense is an affirmative defense that must be proven by the

defendant. State v, Harrison, 10th Dist. No. 06.AP-827, 2007-Ohio-2872, ¶23.

Proving self-defense does not negate an element of the offense, rather, it acts as

a defense for committing the elements of the offense. Id. Thus, arguing that a

defendant acted in self-defense is not an argument that should be made in

reference to a sufficiency argument.

Regarding his other arguments, essentially claiming that the state did not

prove that he acted purposefully, and thus, did not present sufficient evidence

on attempted murder, we disagree.

In order to convict a person of attempted murder, the state must prove

that the defendant acted purposefully in attempting to take the life of another.

R.C. 2903.02. A}ury may find intent to kill where the natural and probable

consequence of a defendant's act is to produce death, and the jury may conclude

from all of the surrounding circumstances that a defendant had a specific

intention to kill. State L. Clark (1995), 101 Ohio App.3d 389, 405, 655 N.E.2d

.I,7-

785. The state presented evidence that Brown fired his gun at least five times

at the victim. (through I)avenport's testimony), and that the victim was hit by

three of those five shots. A natural and probable consequence of shooting at a

person is that the person will be shot and kiIled.

Accordingly, Brown's second assignment of error is overruled.

1V gnifest Weight of the Evidence

In his third assignment of error, Brown contends that his convictions were

against the manifest weight of the evidence.

The Thonipkins court further "distinguished between sufficiency of the

evidence and manifest weight of the evidence, finding that these concepts differ

both qualitatively and quantitatively. Id. at 386. The court held that sufficiency

of the evidence is a test of adequacy as to whether the evidence is legally

sufficient to support a verdict as a matter of law, but weight of the evidence

addresses the evidence's effect of inducing belief. Id. at 386-387. In other words,

a reviewing court asks whose evidence is more persuasive - the state's or the

defendant's? [The court] went on to hold that although there may be sufficient

evidence to support a judgment, it could nevertheless be against the manifest

weight of the evidence. Id, at 387. `When a court of appeals reverses a judgment

of a trial court on the basis that the verdict is against the weight of the evidence,

the appellate court sits as a"thirteenth juror" and disagrees with the factfinder's

1$-

resolution of the conflieting testimony.' Id. at 387, citing 7'dbbs u. Florida (1982),

457 U.S. 31, 42." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 5 N..B.2d

1264, ¶25.

Brown claims that more witnesses "than just [him] believed the victim in

case was about to pull a weapon from his belt" He contends that this

evidence, plus other evidence showing he fired while retreating, "belie the

contention that he was intending to take a life."

Admittedly, there was a lot of conflicting evidence presented in this case,

from both the state's witnesses and Brown's (so much so that we did not put ali.,

of it in the fact section of this opinion). Although we do note that the most

credible and objective witness, Davenport, only saw Brown shoot at Doss as soon

as Doss had stepped into the street, and did not see Doss with a gun. Further,

Brown's trial counsel did an excellent job cross-examining the state's witnesses,

and thus, the jury was well aware of the biases and infirmities of the state's

witnesses and chose to believe them over Brown's.

We further find that the evidence in support of Brown's self-defense theory

was not so convincing that we can say that the jury lost its way in not believing

Brown. Brown was required to prove by a preponderance of the evidence that

(1) he was not responsible for creating the situation giving rise to the shooting;

(2) he had a bona fide belief that he was in imminent danger of death or great

-19-

bodily harm and that his only means of escape from such danger was the use of

such force; and (3) he did not violate any duty to retreat or to avoid the danger.

State u. Cassano,96 Ohio St.3d 94, 2002-Ohio-8751, 772 N.E.2d 81, 172. If the

jury found that Brown had failed to prove by a preponderance of the evidence

any one of the three elements, then it could not have found he acted in

self-defense. ld. at ¶73. Indeed, the jury could have rejected self-defense on

the entirety of Brown's testimony.tingseveral grounds, including rejec

Brown claims that he acted to protect himself as well as "protect his son

who was in the front yard of the home," This contention does not logically make

sense since Brown also asserts that he shot "wildly" and "erratically" - not

intending to hit Doss. If he was so worried about his son, it does not make sense

that he would shoot his gun at least five times "wildly" and "erratically" while

his son was playing in his yard. The pictures admitted at trial show that the

yards were very small and Brown's house (where his son was playing) was very

close to the apartment building next door> where Brown fired his gun -

supposedly "erratically" - at least five times.

We have two different versions of the events that occurred between Doss

and Brown. Thus, it was a credibility question for the jury to determine. The

rationale for giving such deference to the findings of the trial judge or jury is

that they are "best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony." Seasons Coal Co. v. Cleveland (1984), 10

Ohio St.3d 77, 80, 461 N.E.2d 1273. Thus, after reviewing the entire record,

weighing the evidence and all reasonable inferences, we cannot say that this is

the exceptional case where the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered. Thom.pkins, 78 Ohio St.3d at 387.

Accordingly, Brown's third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

-21-z

A certified copy of this entry sball constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

SEAN C. GALI.AGHER, A.J., andPATRICIA ANN BLACKMON, J., CONCUR

.!;A:il ^ 2e^"i

Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Gerald E. Fuerst, Clerk of Courts

STATE OF OHIO

Appellee COA NO. LOWER COURT NO.92814 CP CR-509535

COMMON PLEAS COURT

-vs-

DAVID J. BROWN, SR.

Appellant MOTION NO. 434095

Date 01/11/2011

Journal Entry

APPLICATION BY APPELLANT, PRO SE, FOR REOPENING PURSUANT TO RULE 26(B) IS DEN.VED.

â̂ !LE® AN13 .iOURNALIZEDPER APP.R. 22(C)

Judge LARRY A. JONES, Concurs

Judge SEAN C GALLAGHER Concurs WA&IAdminis tive JudgeMARY EILEEN KILBANE

B-1

(tCourt of AppeaY!5 of OYjio- --_ EIOHTH APPELLAT-I}I8'TRIO-T

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 92814

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DAVID J. BROWN, SR.

DEFENDANT-APPELLANT

JUDGMENT:APPLICATION DENIED

Cuyahoga County Common Pleas CourtCase No. CR-509535

Application for ReopeningMotion No. 434095

RELEASE DATE: January 11, 2011

FOR APPELLANT

David J. Brown, Sr., pro seInmate No. 562-401Trumbull Correctional InstitutionP.O. Box 901Leavittsburg, Ohio 44430

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

By: Kristen L. SobieskiAssistant County Prosecutor8th Floor Justice Center1200 Ontario StreetCleveland, Ohio 44113

-1-

MARY EILEEN KILBANE, A.J.:

On May 20, 2010, the applicant, David J. Brown, pursuant to App.R. 26(B),

applied to reopen this court's judgment in State v. David J. Brown, Sr., Cuyahoga

App. No. 92814, 2010-Ohio-661, in which this court affirmed Brown's convictions

for attempted murder with one- and three-year firearm specifications, two counts

of felonious assault with one- and three-year firearm specifications, and having a

weapon under disability. Brown maintains that his appellate counsel was

ineffective for not arguing 17 assignments of error. On June 17, 2010, the State

of Ohio filed its brief in opposition, and on July 1, 2010, Brown filed a reply brief.

For the following reasons, this court denies the application to reopen.

First, Brown's application exceeds the ten-page limitation established by

App.R. 26(B)(4). This defect provides sufficient reason for dismissing the

application. State v. Murawskti, Cuyahoga App- No. 70854, 2002-Ohio-3631;

State v. Caldwell, Cuyahoga App. No. 44360, 2002-Ohio-2751; State V. Graham

(June 1, 1975), Cuyahoga App. No. 33350, reopening disallowed (July 21, 1994),

Motion No. 252743; State v. Schmidt (Dec. 5, 1991), Cuyahoga App. No. 57738,

reopening disallowed (Aug. 10, 1994), Motion No. 142174; and State u. Peeples

(Dec. 22, 1988), Cuyahoga App. No. 54708, reopening disallowed (Aug. 24, 1994),

Motion No. 254080, affirmed (1994), 71 Ohio St.3d 349, 643 N.E.2d 1112.

-2-

Next, 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), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; and State

v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990), 497

U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768.

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."' Strickland, 104

S.Ct- at 2065.

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:

-3-

"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),

463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 . 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, 77 Ohio St.3d 172,

1996-Ohio-366, 672 N.E.2d 638.

Moreover, 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. u. Jacobs (1898), 58 Ohio St. 77, 50 N.E. 97; Carran u.

-4-

Soline Co. (1928), 7 Ohio Law Abs. 5 and Republic Steel Corp. u. Sontag (1935),

21 Ohio Law Abs. 358. "Clearly, declining to raise claims without record

support cannot constitute ineffective assistance of appellate counsel." State u.

Burke 97 Ohio St.3d 55, 2002-Ohio-5310, paragraph 10.

In the present case, the strategy has always been self-defense. There is

no doubt that Brown fired his gun multiple times at Doss, hitting Doss once in

the stomach and once in each leg. Brown testified that Doss came at him, after

Brown made a remark about Doss's relationship with his girlfriend. Brown

stated that Doss drew a gun and fired a shot at him, at which time Brown

returned fire. Doss testified that Brown made the remark and that he (Doss)

started toward Brown, removed his cell phone from his belt and put it in a

pocket and started to remove his coat, at which time Brown fired at him. The

other witnesses generally bolstered Doss's account. Throughout trial Brown and

his counsel made self-defense the strategy.

Appellate counsel continued this strategy by arguing sufficiency of the

evidence and manifest weight of the evidence.' Pursuant to the admonitions of

the United States Supreme Court and the Supreme Court of Ohio, this court will

not second-guess appellate counsel strategic and professional decision to pursue

' Appellate counsel also argued that the disability charge should have been

bifurcated.

-5-

the natural strategy of this case. Accordingly, this court rules that appellate

counsel's performance was not deficient.

Moreover, this court has reviewed the record and Brown's proposed

assignments of error. His arguments, inter alia, on speedy trial, additional jury

instructions, prosecutorial misconduct, police misconduct, discovery, witness

competency, witness credibility, racial bias, amendment of the indictment,

tampering with the evidence, and deprivation of civil rights under Title 42,

United State Code, Section 1983, are not supported by the record or the law, or

otherwise fail to establish prejudice.

Accordingly, this court denies the application to reopen.

MARY LEEN KILBANE, Administrative Judge

LARRY A. JONES, J., andSEAN C. GALLAGHER, J., CONCUR

FILED AND JOURtvAL12ELPER APRR. 22(0)

BY.EftK OF ^EikBER