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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)