[Cite as State v. Conner, 2014-Ohio-4669.]


                   Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99557




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  ANTHONY CONNER
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-566159-A
                                   Application for Reopening
                                      Motion No. 475043


        RELEASE DATE: October 22, 2014
FOR APPELLANT

Anthony Conner, pro se
#634-718
Lorain Correctional Institution
2075 S. Avon Belden Ave.
Grafton, OH 44044


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Jesse W. Canonico
Daniel T. Van
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} On May 21, 2014, the applicant, Anthony Conner, pursuant to App.R. 26(B)

and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this

court’s judgment in State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, in

which this court affirmed Conner’s convictions and sentences for aggravated murder,

murder, felonious assault, discharge of a firearm on or near a prohibited premises, and

having a weapon while under disability.      On June 25, 2014, Conner filed a supplement

to his application, and on July 28, 2014, the state filed its brief in opposition. Conner

argues that his appellate counsel was ineffective because he did not argue (1) that the trial

court erred in failing to suppress a suggestive pretrial identification, and (2) that the

prosecutor used perjured evidence and an improper argument to secure the conviction.

For the following reasons, this court denies the application.

       {¶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); and State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).

       {¶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 at 689.

       {¶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, 672 N.E.2d

638 (1996).

       {¶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} In the present case in the early morning of August 20, 2012, a fight broke

out at the Sirrah House, a night club, and the club ordered everyone out.         The fight

continued in the parking lot. Police officers responding to the altercation saw Conner in

a red-plaid, long-sleeve shirt shooting a black and silver .45-caliber handgun.   When the

officers chased Conner, he dipped down among the cars and then emerged.        The officers

caught and arrested him some distance from the nightclub, but he was without a firearm.

Subsequently, the police found a black and silver .45-caliber handgun near the location

where Conner had dipped down.

       {¶7} During the fight in the parking lot, several people were injured, and Damon

Woodard was shot to death.       The medical examination recovered a morgue pellet from

Woodard that had been fired from the black and silver .45-caliber handgun.

       {¶8} Marquis Hollowell identified Conner as the shooter while Conner was in a

police car in the parking lot.    Subsequently, during a police investigatory interview, a

detective showed Hollowell a single photograph of Conner, and Hollowell reaffirmed his

identification of Conner as the shooter. However, at trial, Hollowell testified that he

could not remember anything from that night.       The trial court allowed the state to play

the entire video recording of the detective’s interview with Hollowell, including his
identification of Conner from the single photograph, to impeach or to refresh his memory.

 Nevertheless, Hollowell insisted that he could not remember anything.                 Thus,

Hollowell never identified Conner as the shooter for purposes of trial evidence.

Conner’s trial counsel moved for a mistrial because of the prejudicial nature of video

recording.    The trial judge denied the motion and instructed the jury that “[t]he

videotaped interview of Marquis Hollowell is not to be considered as substantive

evidence but only for impeachment purposes.” (Tr. 1531.)

       {¶9} In his first argument, Conner submits that his appellate counsel should have

argued that the trial court erred in failing to suppress this suggestive pretrial

identification.   Conner argues that showing a witness a single photograph is highly

suggestive and creates a very substantial likelihood of misidentification.   State v. Battee,

72 Ohio App.3d 660, 595 N.E.2d 977 (11th Dist.1991). He further notes that the single

photograph procedure is counter to the eyewitness identification procedures specified in

R.C. 2933.83.

       {¶10} This argument is not well-founded. First, the trial judge need not have

suppressed this “identification” because it was not offered as substantive evidence but for

purposes of impeachment or refreshing memory.          This court further notes that neither

Battee nor R.C. 2933.83 prohibit other means of identification, if the totality of the

circumstances indicate that the identification was reliable.

       {¶11} Moreover, appellate counsel continued the trial strategy that playing

Hollowell’s interview was grounds for a mistrial. In this, he made the playing of the
recording part of a larger argument that the admission of other acts evidence and

prosecutorial misconduct demanded a mistrial.            Appellate counsel emphasized in this

assignment of error that playing the recording was prejudicial to Conner and denied him

his right to confrontation and to a fair trial. Appellate counsel focused on the interview

in the second assignment of error that the trial court erred in allowing Hollowell to testify1

and in allowing the state to play the recorded interview.         Appellate counsel argued that

the interview was improperly proffered for impeachment purposes because there was

nothing to impeach.         Hollowell’s lack of memory did not contradict his earlier

statements; he just could not remember them. Furthermore, allowing the jury to hear

Hollowell identify Conner as the shooter was material and irreparable prejudice.

Following the admonitions of the United States Supreme Court, this court will not

second-guess appellate counsel’s strategy and tactics in seeking to obtain a reversal based

on the playing of the video recording.

       {¶12} Finally, Conner has not established prejudice. In its opinion, this court

repeatedly noted there was overwhelming evidence that Conner killed Woodard.

Specifically, in regard to the playing of the interview, this court stated that the trial court

instructed the jury not to consider the recording as substantive evidence, but only for

impeachment purposes. “We have no basis to find that the jury did not follow the

court’s instructions, especially in light of all of the evidence outlined previously in our


          Defense trial counsel questioned Hollowell’s competency to testify because he had been
       1


declared incompetent to stand trial and because he said that he could not remember anything about the
incident.
opinion.”     Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 73. The court

indicated that with the curative instruction the interview did not play a causal role in the

conviction. Suppressing the interview ab initio would not have changed the result of the

trial.

         {¶13} Conner’s second argument is that appellate counsel should have argued

prosecutorial misconduct in proffering perjured testimony and improperly characterizing

some of the witnesses as “lying felons” during closing argument. Conner endeavors to

characterize inconsistencies in Deandre Stephens’s testimony as perjured evidence. 2

The prosecutor called Stephens as a witness, and when Stephens seemed evasive in

answering, the judge granted the prosecutor’s motion to treat him as a hostile witness.

Conner first focuses on an exchange in which the prosecutor asked Stephens whether

Conner had almost run over him when everybody was running around the parking lot.

The prosecutor apparently was seeking an answer consistent with Stephens’s interview

with the detective that Conner probably could have run him over.            Instead, Stephens

testified there were so many people running into each other and bumping into each other

that Conner probably could have almost run him over, but Stephens did not know if

Conner had done that and that he did not see Conner in the parking lot. Next, the

prosecutor asked Stephens if he knew whether Conner had a gun that night. Stephens

said, “No.”    The prosecutor then tried to impeach him with the interview with the


           Stephens and Conner were friends.   They came to Sirrah House together in Stephens’s
         2


girlfriend’s car.
detective in which Stephens said “No. I do not know.” It is difficult to discern how

these inconsistencies amount to perjury, much less how this testimony prejudiced Conner.

 It is understandable how appellate counsel in the exercise of professional judgment

could decide not to argue this point. Finally, appellate counsel did argue prosecutorial

misconduct in characterizing some of the witnesses as “lying felons.” Thus, Conner’s

argument is unpersuasive.

      {¶14} Accordingly, this court denies the application to reopen.



TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
