[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Adams, Slip Opinion No. 2016-Ohio-3043.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-3043
              THE STATE OF OHIO, APPELLEE v. ADAMS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Adams, Slip Opinion No. 2016-Ohio-3043.]
Criminal law—Application to reopen direct appeal based on claim of ineffective
        assistance of appellate counsel—Applicant failed to raise a genuine issue
        of ineffective assistance of appellate counsel—Court of appeals’ denial of
        application to reopen affirmed.
     (No. 2012-1274—Submitted January 26, 2016—Decided May 19, 2016.)
    APPEAL from the Court of Appeals for Mahoning County, No. 08 MA 246,
                                      2012-Ohio-2719.
                                    ________________
        Per Curiam.
        {¶ 1} A jury convicted appellant, Bennie Adams, of the aggravated murder
of Gina Tenney, and he was sentenced to death. A majority of this court affirmed
his conviction but vacated the death sentence. State v. Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, 45 N.E.3d 127. Before that decision was released, Adams filed
                            SUPREME COURT OF OHIO




an App.R. 26(B) application to reopen his direct appeal in the Seventh District
Court of Appeals, which was denied. Adams then filed an appeal of right with this
court. We affirm.
                               Standard of Review
       {¶ 2} An application to reopen the appeal of a conviction will be granted if
there is a genuine issue as to whether the applicant was denied effective assistance
of appellate counsel. App.R. 26(B). To succeed on an App.R. 26(B) application,
a petitioner must establish that counsel’s performance fell below an objective
standard of reasonable representation and that he was prejudiced by the deficient
performance. State v. Dillon, 74 Ohio St.3d 166, 171, 657 N.E.2d 273 (1995).
                 Proposition of Law No. 1: Confrontation Clause
       {¶ 3} At the trial in the underlying case, Dr. Humphrey Germaniuk testified
as the state’s expert forensic pathologist and substitute witness in place of the
coroner who performed Tenney’s autopsy.         Adams at ¶ 50-51.       In his first
proposition of law, Adams argues that the admission of the coroner’s report without
the testimony of the doctor who prepared the report violated his rights under the
Confrontation Clause of the Sixth Amendment and that his appellate counsel were
ineffective for failing to raise this issue on direct appeal. Amici curiae Ohio
Association of Criminal Defense Lawyers and the Cuyahoga County Public
Defender filed a brief with the court in support of Adams’s argument.
       {¶ 4} At the time this App.R. 26(B) application was briefed, the law
surrounding the admissibility of autopsy reports prepared by nontestifying medical
examiners was unsettled. However, we have since held that “an autopsy report that
is neither prepared for the primary purpose of accusing a targeted individual nor
prepared for the primary purpose of providing evidence in a criminal trial is
nontestimonial, and its admission into evidence at trial under Evid.R. 803(6) as a
business record does not violate a defendant’s Sixth Amendment confrontation
rights.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 63.




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                                January Term, 2016




       {¶ 5} Adams argues that the state could have called the coroner who had
performed the autopsy, but chose not to do so. Even assuming this is true, the
availability of the original coroner is irrelevant. Evid.R. 803, which contains the
business-records exception to the hearsay rule, expressly states that evidence within
the scope of the rule is admissible “even though the declarant is available as a
witness.”
       {¶ 6} Alternatively, Adams argues that it was a Confrontation Clause
violation to allow Germaniuk to testify as to the contents of the report or to offer
his own opinions. Maxwell resolved these issues as well. Because the report is
itself admissible, Germaniuk’s testimony as to its contents is not a Confrontation
Clause problem. Maxwell, ¶ 51-52. With respect to Germaniuk’s testifying as to
his own opinions, “[s]uch testimony constituted [his] original observations and
opinions and did not violate the Confrontation Clause, because he was available for
cross-examination regarding them.” Id. at ¶ 53.
       {¶ 7} Based on Maxwell, we hold that the failure to challenge Germaniuk’s
testimony or the autopsy report was not ineffective representation, because any
such challenge would have failed as a matter of law. The first proposition of law
lacks merit.
                 Proposition of Law No. 2: Ineffective Assistance
                          of Trial and Appellate Counsel
       {¶ 8} In his second proposition of law, Adams identifies six objections that
his trial counsel should have raised. According to Adams, his appellate counsel
were ineffective for not raising these as instances of ineffective assistance of trial
counsel.
        Failure to object to the court’s questioning of the state’s witnesses
       {¶ 9} The trial court conducted a pretrial hearing to consider the
admissibility of testimony from Tenney’s friends concerning statements she made
before her death about Adams and/or her generally fearful state of mind. Adams,




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144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 227-228. With respect
to testimony about Tenney’s general state of mind, “the trial judge decided (without
objection) that he alone would pose the questions to the witnesses.” Id. at ¶ 228.
       {¶ 10} On direct appeal, Adams argued that the trial judge had
impermissibly interjected himself into the proceedings in a way that was overly
favorable to the state. Id. We found no evidence of partiality and therefore rejected
this argument. Id. at ¶ 229-230.
       {¶ 11} In the present application to reopen, Adams contends that he was
prejudiced by his trial counsel’s failure to object to the trial court’s questioning at
the time. The court of appeals rejected this claim because in its consideration of
Adams’s direct appeal, it


       ruled on the merits of the issue regardless of the fact that trial
       counsel did not raise the issue to the trial court at the motion in
       limine hearing. Hence, it is irrelevant that appellate counsel did not
       specifically raise ineffective assistance of trial counsel.


2012-Ohio-2719, at ¶ 34. We agree with the appellate court that Adams was not
prejudiced, because the underlying issue was addressed in his direct appeal, despite
the absence of an objection.
    Failure to object to prejudicial comments made by a witness for the state
       {¶ 12} Adams faults his trial counsel for failing to object to two prejudicial
statements made by Detective William Blanchard at trial. First, when asked
whether he had previously testified in this case, Blanchard volunteered that he had
testified at two “suppression hearings.” Adams, 144 Ohio St.3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, at ¶ 197. Second, when asked whether he had had any
conversations with Adena Fedelia, Adams’s girlfriend, after January 3, 1986,




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                                 January Term, 2016




Blanchard replied, “Not about this case.” Id. Trial counsel did not object to either
statement.
         {¶ 13} Blanchard also mentioned the name of the victim in an unrelated
rape that Adams had been convicted of committing. Id. But Blanchard did not say
anything other than the victim’s name; he did not indicate that she was a rape
victim. Id. at ¶ 202. At that point, Adams’s counsel objected and requested a
mistrial, based on all three remarks. Id. at ¶ 197.
         {¶ 14} On direct appeal, we upheld the denial of the motion for mistrial. Id.
at ¶ 199. In doing so, we specifically held that “[Blanchard’s] comment about
talking to Fedelia was too ambiguous to be prejudicial.” Id. at ¶ 201. Likewise,
we held that the “isolated reference” to suppression hearings was not prejudicial,
because Blanchard did not state or insinuate that the motion had been granted and
that evidence was being withheld from the jury. Id. at ¶ 200.
         {¶ 15} In the application to reopen the appeal, Adams faults his trial counsel
for not objecting to Blanchard’s remarks at the time they were made. Here again,
the appellate court correctly saw no reason to reopen the appeal because it had
addressed the merits of the objections in the context of reviewing the trial court’s
denial of the motion for mistrial. 2012-Ohio-2719, at ¶ 43.
                               Failure to make a record
         {¶ 16} Before trial, Adams filed a motion to dismiss the indictment based
on an alleged speedy-trial violation; the trial court denied the motion. See Adams,
144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 80. On direct appeal,
Adams objected to the trial court’s failure to state its findings of fact on the record,
as required by Crim.R. 12(F). This court rejected the argument because Crim.R.
12(F) is not self-executing and Adams never requested findings of fact. Adams at
¶ 112.
         {¶ 17} In his application for reopening, Adams claims that his appellate
counsel were ineffective for not alleging ineffective assistance of trial counsel for




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failing to object to the trial court’s omission of the findings of fact. The appellate
court concluded that Adams failed to prove prejudice, as required in an application
for reopening, because the record was sufficiently complete to permit appellate
review of the speedy-trial motion. 2012-Ohio-2719, ¶ 54.
       {¶ 18} In his appeal to this court, Adams claims that he was prejudiced but
never explains how. We therefore affirm the appellate court’s decision because
Adams has given us no reason to do otherwise.
       Failure to object to the removal of prospective juror Nos. 11 and 31
       {¶ 19} Adams asserts that trial counsel failed to preserve his challenge,
pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
to the removal of prospective juror Nos. 11 and 31 and that appellate counsel failed
to raise trial counsel’s ineffectiveness in failing to preserve the claim. But the claim
was preserved on direct appeal, and this court considered and rejected Adams’s
Batson challenge to the removal of prospective juror Nos. 11 and 31 on the merits.
Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 159-162. It
follows that no ineffectiveness may be imputed to appellate counsel and that this
claim must fail.
  Failure to present expert psychological testimony during the mitigation phase
       {¶ 20} Adams claims that if his trial counsel had presented expert
psychological testimony during the mitigation phase, there is “a reasonable
probability” that he would have been spared the death penalty. Because Adams’s
death sentence was vacated on direct appeal, this argument is now moot.
      Failure to object to the autopsy report or the testimony of Germaniuk
       {¶ 21} Adams argues that his trial counsel were ineffective for failing to
object to the admission of the autopsy report and Germaniuk’s testimony. As
explained above, the report and Germaniuk’s testimony were both properly
admitted. It follows, then, that the failure to object to such evidence was not
deficient performance.




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              Proposition of Law No. 3: Sufficiency of the Evidence
       {¶ 22} In his third proposition of law, Adams argues that the evidence was
insufficient to convict him of aggravated murder in the course of committing rape
or kidnapping. He claims ineffective assistance of appellate counsel because the
sufficiency of the evidence was not challenged on direct appeal.
       {¶ 23} Notwithstanding the lack of a proposition of law on the issue, we
addressed the sufficiency of the evidence on direct appeal in the context of
reviewing the aggravating circumstance and found sufficient evidence to prove that
Adams committed aggravated murder in the course of rape and kidnapping. Id. at
¶ 276-277. Therefore, Adams’s third proposition of law does not warrant reopening
the appeal.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.
       O’NEILL, J., dissents.
                                _________________
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Kimberly S. Rigby and
Kathryn L. Sandford, Assistant Ohio Public Defenders, for appellant.
       Robert L. Tobik, Cuyahoga County Public Defender, and Erika B. Cunliffe,
Assistant Public Defender; and Jeffrey Gamso, urging reversal for amici curiae, the
Ohio Association of Criminal Defense Lawyers and Cuyahoga County Public
Defender.
                                _________________




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