[Cite as State v. Allen, 2012-Ohio-5709.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 97014




                                     STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                 DEMETRIUS ALLEN
                                                  DEFENDANT-APPELLANT




                                    JUDGMENT:
                                APPLICATION DENIED


                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-540250
                                Application for Reopening
                                    Motion No. 457034
     BEFORE: Blackmon, A.J., S. Gallagher, J., and Kilbane, J.

     RELEASED DATE:             December 5, 2012


FOR APPELLANT

Demetrius Allen, Pro Se
Inmate No. A602955
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Sanjeev Bhasker
James M. Price
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, A.J.:

     {¶1} On July 23, 2012, the applicant, Demetrius Allen, pursuant to App.R. 26(B) and
State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), timely applied to reopen this

court’s judgment in State v. Allen, 8th Dist. No. 97014, 2012-Ohio-1831, in which this court

affirmed Allen’s convictions and sentences for two counts of aggravated murder, three counts

of attempted aggravated murder, with one and three-year firearm specifications, and one count

of having a weapon under disability.      Allen now maintains that his appellate counsel should
                                      1




have argued that his trial counsel was ineffective in the following ways: (1) she did not request

his presence at a jury view of the crime scene; (2) she did not call various witnesses to support

his defense; (3) she did not have an investigator to investigate his alibi defense; (4) she did not

object to the prosecutor’s questions to him concerning a local gang; and (5) she did not seek to

replace various sleeping jurors.    On August 8, 2012, the state of Ohio filed its brief in

opposition.   For the following reasons, this court denies Allen’s application to reopen.

       {¶2} 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, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989);


       1
         At approximately 8:30 p.m. on July 17, 2010, five men were socializing outside a
house, when two men approached and fired on them with an AK-47. The five men tried to
flee. Two were killed, one was shot in the foot, another injured his foot, and the other
escaped unharmed. Two eyewitnesses identified Demetrius Allen and Montez Logan as the
two assailants.
and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

       {¶3} 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, 466 U.S. 668 at 689, 104 S.Ct. at 2065.

       {¶4} 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, 463 U.S.

745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (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, 77 Ohio

St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

       {¶5} 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.

       {¶6} Furthermore, appellate review is strictly limited to the record. The Warder,

Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898).            “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, 93 Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130.

“Clearly, declining to raise claims without record support cannot constitute ineffective

assistance of appellate counsel.”   State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310,776

N.E.2d 79, ¶10.

       {¶7} Allen’s first argument is that his trial counsel was ineffective for not requesting

that he be present during the jury view.     He claims that his absence prevented him from
requesting certain observations that would later bolster his case that certain witnesses could

not have seen what they claimed.

       {¶8} The records shows that the jury did view the crime scene.       However, it is silent

as to who was or was not present, to what was observed, and to what was requested.       In State

v. Richey, 64 Ohio St.3d 353, 367, 1992-Ohio-44, 595 N.E.2d 915, the Supreme Court of

Ohio ruled that a “court cannot presume prejudice from an unrecorded visit to a crime scene.”

 Therefore, this argument fails because Allen cannot establish prejudice.        Additionally, a

“view of a crime scene is neither evidence nor a critical stage in the proceedings.” Id. Thus,

Allen did not have a right to be present at the view.    Accordingly, it is understandable that

appellate counsel in the exercise of professional judgment would decline to argue that point.

       {¶9} Allen also argues that his trial counsel was ineffective for failing to call

additional witnesses on his behalf.   He submits that these witnesses would have testified that

they “suspected Arsenio Smith of committing the murders.” (Pg. 4 of application.)        During

the cross-examination of the investigating police officers, Allen’s counsel elicited that various

individuals had told the officers that Arsenio might have been the perpetrator.           These

witnesses could have bolstered that evidence.

       {¶10} However, the record does not verify what these witnesses’ testimony would

have been.    Without that, appellate counsel and this court could only speculate what the

testimony would have been and whether that would have been helpful to Allen.         Speculation
is insufficient for making an appellate argument and does not establish prejudice. State v.

Addison, 8th Dist. No. 90642, 2009-Ohio-221, reopening disallowed, 2009-Ohio-2704; and

State v. Abdul, 8th Dist. No. 90789, 2009-Ohio-225, reopening disallowed, 2009-Ohio-6300.

 Moreover, the decisions on what evidence to present fall within the realm of trial strategy and

tactics that will ordinarily not be disturbed on appeal. State v. Warner, 8th Dist. No. 95750,

2011-Ohio-4096, reopening disallowed, 2012-Ohio-256.

       {¶11} Similarly, Allen’s next argument is also unpersuasive.     He claims that his trial

counsel did not have an investigator to investigate his alibi defense or that she failed to

investigate it herself.   During trial, Allen, Allen’s brother, Logan, and a friend of Allen’s

brother, all testified that on the day of the shooting, Allen and Logan took Allen’s brother and

his friend to a shoe store at Lee and Harvard and then took them home.       Allen, Logan, and

the brother indicated that this trip took place between 6:30 and 8:30 p.m., so that Allen and

Logan would not have had time to travel to East 123rd and Signet, the location of the crime, to

have committed it at approximately 8:30.    The friend indicated that the trip might have been

earlier in the day.   Allen also maintained that after dropping his brother and the friend at

home, he and Logan stopped at a liquor store and went to a friend’s house.          Allen now

complains that his trial counsel did not investigate this alibi enough, such as seeking the film

from the stores’ surveillance cameras.

       {¶12} However, the record shows that defense counsel did have an investigator who
participated in the preparation of the case.     Nevertheless, this argument is dependent on

speculation.   The record does not indicate whether either defense counsel or the investigator

went to the stores, whether anyone there had any recollection of that day, whether there were

working cameras, whether the films were preserved, and what they showed.             Without the

answers to those questions, appellate counsel and this court could only speculate on what the

evidence would have shown.         That is not the basis for a sound appellate argument, and

prejudice cannot be established.

        {¶13} Next, Allen argues that his trial counsel was deficient in allowing the prosecutor

to question him concerning his possible connections to a local gang.        Again, Allen cannot

establish prejudice.   Allen’s appellate counsel chose to address this issue directly, rather than

indirectly through the lens of ineffective assistance of trial counsel, by arguing the following:

“Suggestions of potential gang affiliation and improper comments about defense counsel

resulted in prejudice and deprived appellant of his federal and state constitutional rights to due

process and a fair trial.”    In rejecting this assignment of error, this court reviewed the

relevant testimony and ruled: “Allen has failed to demonstrate how the admission of the

testimony alleging the potential of gang membership adversely affected his right to a fair trial

* * *.”   There was no prejudice from the testimony.           He already argued this point and

lost.

        { ¶ 14} Allen’s final argument is “that trial counsel only requested an in-
camera-inspection of juror numbers 1 and 3.       Counsel could have moved the court to voir

dire or replace other jurors alleged to be sleeping.”      Toward the end of the trial, defense

counsel raised the issue with the judge that jurors 1 and 3 were sleeping at various times

during the trial.   The judge questioned both jurors.     Juror number 3 admitted to sleeping

during the trial, and the judge replaced him with an alternate.          Juror number 1 denied

sleeping, and defense counsel did not ask for his removal.        Beyond this, the record is not

clear as to whether any other jurors may have been sleeping during trial.

       { ¶ 15} Appellate counsel addressed this issue in the third assignment of error:

“Appellant was deprived of his due process rights and his rights to a fair trial by jury under the

Sixth Amendment of the U.S. Constitution and Article I, Section 10 of the Ohio Constitution

where issues of juror misconduct were not timely addressed.”       In addition to the question of

the two jurors suspected of sleeping, appellate counsel also argued that the judge erred by not

addressing earlier problems other jurors had.        One juror was afraid of making a bad

impression on a new employer because the case was taking so long.         Another had a medical

procedure scheduled.    Following the admonition of the Supreme Court, this court will not

question the reasonable professional judgments of counsel in framing issues supported by the

record, as compared to others that have less support.

       {¶16} Accordingly, this court denies the application to reopen.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
