S.D.Ohio: Not IAC to fail to call co-arrestee at suppression hearing to testify to facts of search

It wasn’t ineffective assistance of counsel for defense counsel to decline to call Smith who was also arrested at the same time to corroborate his version of events of the search. Counsel believed that Smith wouldn’t withstand reasonable cross-examination because of self-incrimination. Moreover, Smith would have been contradicted by multiple police officers on those facts. Stoermer v. Warden, 2020 U.S. Dist. LEXIS 204435 (S.D. Ohio Nov. 2, 2020):

There is no discussion at all of Smith’s post-conviction affidavit. Stoermer implies that the Second District’s labeling of Attorney Latham’s decision not to call Smith at the suppression hearing is just a convenient labeling to avoid analysis. But the fact that, as Stoermer says, there is nothing in the record that reflects Latham’s judgment does not mean Stoermer prevails on this point. Was Smith willing to testify at the suppression hearing to the same effect as he later averred in his affidavit? Recall that he had been arrested for a felony in the same incident and in the course of the arrest had attempted to hide a loaded handgun under his sleeping child. Would he have been willing to risk incriminating cross-examination about the felony and/or about the grossly stupid act with the gun? Even if he had been willing to testify then as he averred in his affidavit, would it have represented sound judgment to call him? Even if there is no record evidence of Latham’s thought process, assuming he knew about Smith what we now know, it cannot be said to have been a bad decision not to put him on the stand.

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