OH7: Defense counsel’s strategic choice to not challenge search was reasonable; he exploited it in cross of the officers

Defense counsel’s strategic choice to not challenge a search and embrace the result of the search for cross-examination was reasonable. And it was justified because it resulted in acquittal on a big count. State v. Baker, 2020-Ohio-7023, 2020 Ohio App. LEXIS 4860 (7th Dist. Dec. 30, 2020) (see Treatise § 60.19 n.7):

{¶90} In the case at bar, there was no objection to the seized evidence. As explained supra, the evidence introduced as a result of the search warrant executed at Appellant’s houses did not include an actual weapon. Rather, the evidence seized from Appellant’s houses that was introduced at trial was merely an empty box which previously contained a .40 caliber firearm, a bag of .45 caliber ammunition, and a lone 9mm casing.

{¶91} Defense counsel strategically questioned the witnesses about these items. He criticized the part in the detective notes saying the bag contained 9mm ammunition (when it was actually .45 caliber) in order to suggest poor observational and investigative skills. Defense counsel emphasized the inability to use a .45 caliber bullet in the 9mm murder weapon. He also pointed out the murder weapon was not whatever .40 caliber weapon formerly occupied the empty box. Counsel highlighted the fact that the single 9mm casing found on a shelf was not fired from the 9mm murder weapon as scientifically proven by the state. The evidence discovered as a result of the search was portrayed by the defense as exculpatory.

{¶92} Assuming Appellant could have successfully challenged the seized items as inadmissible gun-related evidence on the grounds that it was irrelevant or it was used to suggest he had a past proclivity to own weapons, this would still not mean counsel was ineffective or the trial court committed plain error. Defense counsel could have reasonably weighed the value of evidence to the defense and concluded that it outweighed any potential prejudice. For instance, he could have rationally believed the particular seized evidence would not lead a jury to infer that a homeowner with these items in their house had a propensity to commit murder by purposely shooting another person. As for the weapon under disability conviction, counsel could hope the jury considered the seized evidence as suggesting Appellant was following the restriction against having a weapon as the gun box was empty. The existence of ammunition in his house was not alleged to be illegal, and the amount of ammunition was 44 rounds, which was noted to be less than the amount in a standard box (50).

{¶93} It was clearly a tactical decision to allow the jury to hear that although this ammunition and an empty .40 caliber gun box was found in Appellant’s house, he had no firearm or 9mm ammunition. We will not second guess this strategical decision. The failure to object to the admission of the three items found during the execution of the search warrant was not ineffective assistance of counsel as counsel’s tactic was not a serious error outside the realm of reasonable representation.

{¶94} Additionally, prejudice is lacking as there was not a reasonable probability the result would have been different if the three items found in executing the search warrant were not disclosed to the jury. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Bradley, 42 Ohio St.3d at 142, fn. 1, quoting Strickland, 466 U.S. at 693. There was substantial evidence connecting Appellant with the shooting as discussed in the Statement of the Case and under Appellant’s sufficiency and weight assignments of error. Circumstantial evidence inherently possesses the same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). “A conviction can be sustained based on circumstantial evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991). Moreover, informing the jury that Appellant’s houses contained an unrelated empty gun box, a bag of 44 unrelated bullets, and an unrelated casing was not inflammatory. We note the jury found Appellant not guilty of aggravated murder. We cannot say the results were unreliable or the proceeding was fundamentally unfair due to counsel’s failure to contest the evidence. See Carter, 72 Ohio St.3d at 558, citing Lockhart, 506 U.S. at 369.

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