What's Up in the 8th
Just to show you how life can go to hell in a heartbeat, consider David Wilder. He was a professor at Cleveland State University, and one March morning last year he was driving to class. A quarter mile away, Terrell Gray, Charles Walker, and Kassius Williams decided to shoot up a car. They were successful in killing one of the occupants of the vehicle. An errant bullet traveled 1,400 feet and struck Wilder, killing him instantly.
Last week, the 8th affirmed Gray's conviction and 61-to-life sentence. The court easily rejects arguments concerning the sufficiency and manifest weight of the evidence, and the contention that the record does not support consecutive sentences.
The only issue with meat on it is Gray's assertion that his attorneys were ineffective in not hiring a ballistics expert to rebut the State's witnesses. That runs into the Supreme Court's decision in State v. Hunter that "the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel." That, and the inability to engage in anything more than pure speculation as to what an expert could have testified to, sends Gray to prison. If the parole board bounces him at their first opportunity - a result I have no reason to anticipate - he will be 87 years old. I am not at all uncomfortable with that result.
It's unfortunately become prevalent to include ineffective assistance of counsel as assignments of error in appeals, but please. In State v. Williams, one of the claimed derelictions of trial counsel was the failure to request a bill of particulars. Whether the bill of particulars serves any purpose in light of the open discovery rules is questionable; in this county at least, the only additional fact provided by a bill of particulars, beyond the indictment, is the location of the offense, something which can be easily gleaned from the police report.
Besides, Williams got a bill of particulars; it's the practice of the prosecutor's office here to include a bill of particulars with the response to discovery, even if one has not been requested. Williams also claims a breakdown in the attorney-client relationship, but that stems from counsel's refusal to provide him copies of documents clearly marked "counsel only."
The most notable thing about Williams is that he was one of Gray's co-defendants. He was 19 when he committed the crime. He's doing 66 to life. Walker, the other defendant, got 71 to life. I'm not losing any sleep over those, either.
Ineffective assistance is the flavor of the month in State v. Boyd, too. Boyd robs a bank, and a bunch of testimony comes in about the conversations of two women who helped identify Boyd, in blatant violation of the hearsay rules, with no objection by defense counsel. Wouldn't you know, it's harmless error, because both women testified at trial. If the declarant testifies at trial and can be cross-examined, there's no harm, and that makes sense.
Andre Boynton might have had a claim of ineffective assistance, had the judge indulged Boynton's desire to represent himself, voiced for the first time on the second day of trial. He has an even worse chance of seeing the light of day as a free man; the court affirms his conviction and sentence of life without parole.
Normally, being in prison at the time the crimes were committed is about as air-tight an alibi as you can have. It provided no help for Boynton: from prison, he directed his girlfriend by phone to pick up young boys and have sex with them, and eventually, to have anal sex with Boynton's 14-year-old developmentally disabled niece, while Boynton listened.
The weird thing is that Boynton didn't smuggle in a cell phone to make the calls; all of them were made over the prison's phone system, where each call begins with the announcement that "these calls are recorded and monitored." Recorded, yeah, but monitored not so much: Boynton's crimes were committed over a two-year period.
Asa Asadi-Ousley does have a valid claim of ineffective assistance, this time of appellate counsel. Asadi-Ousley raped and beat up a woman in 2008, but wasn't caught until a CODIS hit in 2015. His convictions for rape, kidnapping, and felonious assault were affirmed, but the 8th granted his motion to reopen the appeal and found that appellate counsel was ineffective for failing to raise a claim that trial counsel had been ineffective for not arguing that the six-year statute of limitations for the felonious assault had run.
The State contends the late filing is saved by RC 2901.13(H), which provides that the statute is tolled "during any time when the accused purposely avoids prosecution." The defendant concealing his identity or whereabouts is prima facie evidence of that purpose, and the State argues that Asadi-Ousely's hitting the woman over the head from behind -- she couldn't identify him -- constitutes "concealing his identity." Certainly a novel argument, but novelty appears to be its sole redeeming feature; the 8th brushes it off, correctly concluding that concealment has to be after the crime has been completed.
Whether all this was worth the trip for Asadi-Ousley is another matter: the eight years he got for felonious assault ran concurrently with that pesky fifteen-to-life sentences for the rape and kidnapping. At least Asadi-Ousely will be able to tell his fellow inmates Boynton, Williams, and Gray that there is a decent possibility that he will someday live in a place that doesn't have bars on its windows.
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