[Cite as State v. Clement, 2012-Ohio-582.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 94869




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                REGINALD CLEMENT
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-518986
                                   Application for Reopening
                                      Motion No. 445587


        RELEASE DATE: February 13, 2012
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square Ste 1016
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Steven E. Gall
Mary McGrath
Brad S. Meyer
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶ 1} On June 24, 2011, the applicant, Reginald Clement, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. Clement, 8th Dist. No. 94869,

2011-Ohio-1555, 2011 WL 1168133, in which this court affirmed Clement’s convictions

for one count of aggravated murder, one count of murder, two counts of aggravated

robbery, and two counts of kidnapping, with accompanying firearm specifications.

Clement now argues that his appellate counsel was ineffective for not arguing the

following: (1) the trial court erred in refusing to instruct on the lesser included offenses of
manslaughter and reckless homicide; (2) the trial court erred in refusing to instruct the

jury that pleas of guilty by co-defendants could not be considered as substantive evidence

of Clement’s guilt; (3) the trial court erred in not instructing the jury on a culpable mental

state as an aider and abettor; (4) the trial court erred when it instructed on flight; (5) trial

counsel was ineffective for failing to object to the jury instructions, for failing to request

an instruction on identification and for failing to file a motion to suppress Dominic

Rodgers’s identification of Clement; (6) the trial court erred in sentencing for aggravated

murder when the jury returned a verdict of guilty for murder; and (7) the trial court erred

in not declaring a mistrial when there was a blatant discovery violation.              For the

following reasons, this court denies the 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), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990); 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, 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 and State v. Tenace, 109 Ohio St.3d 451,

2006-Ohio-2987, 849 N.E.2d 1.

       {¶ 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 court need not determine

whether counsel’s performance was deficient before examining prejudice suffered by the

defendant as a result of alleged deficiencies.

       {¶ 6} Clement’s first argument is that the trial court should have instructed on the

lesser included offenses of manslaughter and reckless homicide, especially because this

was a capital case.   In State v. Bolton, 8th Dist. No. 96385, 2012-Ohio-169, 2012 WL

171039, ¶45, this court reviewed the requisites for giving a lesser included offense

charge.

       A charge on a ‘lesser included offense is required only where the evidence

       presented at trial would reasonably support both an acquittal on the crime

       charged and a conviction upon the lesser included offense.’         State v.

       Thomas, 40 Ohio St.3d 213, 533 N.E.2d (1988), paragraph two of the

       syllabus; State v. Shane, 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272

       (1992). Conversely, if the jury could not reasonably find against the state

       on any element of the crime, then a charge on a lesser included offense is

       not only not required, but improper.

Clement in his brief also admits that the evidence must support the charge on the lesser

included offense.

       {¶ 7} In the present case, Clement, Dominic Rodgers, Alfred Rodgers, Demetrius

Williams, and Lavonte Green conspired to rob Gregory Williams, a marijuana dealer, of

his money and drugs. They lured Gregory to the Rodgers’s house on the pretext of
buying marijuana.     Tramel Wallace drove Gregory to the house and pulled all the way

into the driveway, approximately 40 feet.     Gregory was in the front passenger seat.

Clement, who had a gun, stood by the passenger side door, and Green jumped into the

back seat, pointed his gun at Gregory, and announced the robbery.          Gregory grabbed

Green’s gun, jumped into the back seat, and wrestled for control of the gun.   As Wallace

backed up the car, Clement ran along side the length of the driveway. When Wallace

stopped the car at the end of the driveway, Clement stuck his gun in the passenger side

window and shot Gregory in the chest, mortally wounding him.

         {¶ 8} Clement’s acts of pursuing the car, sticking the gun into the window and

shooting Gregory at close range show intent and purpose inconsistent with reckless

homicide or manslaughter.     The evidence did not support such charges.    Thus, appellate

counsel in the exercise of professional judgment could properly conclude not to raise this

issue.

         {¶ 9} During the trial, the prosecutor elicited from Alfred Rodgers that he had

pleaded guilty to manslaughter and aggravated robbery for his involvement in the

conspiracy.     Defense counsel also cross-examined Alfred about his guilty plea.

Dominic Rodgers also admitted that he was guilty of accessory to manslaughter. For his

second argument, Clement asserts that the trial court should have instructed the jury that

co-defendants’s pleas of guilty or convictions could not be considered as substantive

evidence of Clement’s guilt. This court in State v. Karstone, 8th Dist. No. 95104,

2011-Ohio-1930, 2011 WL 1584116, ¶42,         stated the criteria for such a charge: “the
admission of such evidence without a limiting instruction is not reversible error if defense

counsel does not request an instruction and if the evidence was introduced for a proper

purpose.” Proper purposes include impeaching the witness or showing that the state has

nothing to hide in its plea agreements.

       {¶ 10} In the present case, Clement did not establish the prerequisites for giving

the instruction. A review of the transcripts shows that the guilty plea was introduced for

proper purposes and that the prosecutor did not emphasize the guilty plea or Dominic’s

conviction. Thus, Clement’s argument is not well taken.

       {¶ 11} Next, Clement argues that the trial court erred in allowing him to be

convicted as an aider and abettor without any requirement that defendant possessed a

culpable mental state.   This proposed assignment of error is ill-founded, because the trial

court gave a full instruction on “purpose” when giving the jury charge on aiding and

abetting.

       {¶ 12} Clement’s next argument is that he was denied due process when the trial

court instructed on flight. He cites several old cases, e.g., Dillon v. State, 7 Ohio L.Abs.

46, (Ct. App. 1928), for the proposition that circumstances of flight is as consistent with

the theory of innocence as of guilt. However, this is not the current view.

       “[I]t is also well established that the flight of an accused from justice is

       admissible as evidence for the consciousness of guilt. * * * It is to-day [sic]

       universally conceded that the fact of an accused’s flight, escape from

       custody, resistance to arrest, concealment, assumption of a false name, and
       related conduct, are admissible as evidence of consciousness of guilt, and

       thus of guilt itself.’ 2 Wigmore on Evidence (3 Ed.), 111, Section 276, * * *

       (Citations omitted.) It is reserved for the jury to determine ‘how much

       weight should be given to such evidence.’ United States v. Dillon (C.A. 6

       1989), 870 F.2d 1125, 1126, quoting United States v. Craig (C.A. 6, 1975),

       522 F.2d 29, 32. ‘A jury instruction on flight is appropriate if there is

       sufficient evidence in the record to support the charge.’ Davilla,

       2004-Ohio-4448, 2004 WL 1882651, at ¶12.” State v. Jeffries, 182 Ohio

       App.3d 459, 2009-Ohio-2440, 913 N.E.2d 493, ¶ 80, and State v. Taylor,

       8th Dist. No. 86449, 2006-Ohio-3019, 2006 WL 1644914.

Thus, Clement’s argument is not well-founded, and appellate counsel in the exercise of

professional judgment could reject it.

       {¶ 13} Next, Clement argues that his trial counsel was ineffective in various ways.

 First, trial counsel should have objected to the jury instruction on aiding and abetting

because it did not include an instruction on culpable mental state. As stated earlier, this

argument is baseless because the judge did instruct on “purpose” in the aiding and

abetting charge.

       {¶ 14} During the examination of the driver, Tramel Wallace, the prosecution

asked him if he could see the shooter in the courtroom today. Wallace apparently looked

at Clement, but did not say anything before defense counsel objected and moved for a

mistrial. Clement now maintains that his counsel should have requested an instruction
on identification.     Following the supreme court’s admonitions, this court will not

second-guess trial counsel’s strategy and tactics on this point. Moreover, the trial court

did instruct the witness to testify to the truth which would be that he could not identify the

shooter. Thus, this argument is also not well-founded.

       {¶ 15} Clement also argues that trial counsel was ineffective for not filing a motion

to suppress Dominic Rodgers’s identification of Clement. However, Clement fails to

establish prejudice.    The trial judge held an extensive voir dire at trial on Dominic’s

ability to identify Clement and ruled that Dominic in fact knew Clement because there

was a relationship between them. During this voir dire the trial judge elicited that

Dominic had seen Clement before the day of the robbery and that he was related to

Dominic’s sister’s boyfriend. Thus, the judge allowed Dominic to identify Clement.

There is no reason to believe that moving to suppress the identification before trial would

have changed the judge’s ruling.

       {¶ 16} Count I charged Clement with aggravated murder under R.C. 2903.01(A)

that he purposely and with prior calculation and design caused the death of another.

Count II charged him with aggravated murder under R.C. 2903.01(B) that he purposely

caused the death of another while committing or attempting to commit, or while fleeing

immediately after committing or attempting to commit aggravated robbery.            The jury

found him not guilty of aggravated murder under Count I, but guilty of the lesser included

offense of murder under Count I.     The jury also found him guilty of aggravated murder

under Count II.      The trial judge merged the murder count, the two aggravated robbery
counts, and the kidnapping count concerning Gregory into Count II, and sentenced

Clement to life imprisonment with parole eligibility after 30 years.   Clement now argues

that the jury verdicts for murder and aggravated murder are inherently inconsistent, and

he should have been sentenced only on the murder conviction.

       “[I]n criminal cases, consistency between verdicts on several counts of an

       indictment is unnecessary where the defendant is convicted on one or some

       counts, and acquitted on others, and the conviction will generally be upheld,

       irrespective of its rational incompatibility with the acquittal.’   State v.

       Sailor, 8th Dist. No. 83552, 2004-Ohio-5207, 2004 WL 2340113, ¶ 88,

       citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th Dist.

       1985).” State v. Bolton, 8th Dist. No. 96385, 2012-Ohio-169, 2012 WL

       1717039, ¶74.

Also the evidence supports the finding that Clement purposely killed Gregory during a

robbery or attempted robbery.    It is also understandable how on these facts a jury might

conclude that the state had not proven the element of prior calculation and design beyond

a reasonable doubt.     Appellate counsel in the exercise of professional judgment could

decline to raise this issue.

       {¶ 17} Finally, Clement argues that the trial court erred in not granting a mistrial

because there was a blatant discovery violation.       Clement asserts that his defense

counsel had been told that Tramel Wallace was unable to make an identification.

However, it appears that the prosecution was going to have him make an identification,
and defense counsel had not been provided with discovery in that regard.     Clement does

not establish prejudice for the failure to make discovery.   Defense counsel was able to

timely object and prevent Wallace from identifying Clement as the shooter.

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




FRANK D. CELEBREZZE, JR., J.

MARY EILEEN KILBANE, P.J., AND
JAMES J. SWEENEY, J., CONCUR
