[Cite as State v. Williams, 2014-Ohio-199.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 

 JOURNAL ENTRY AND OPINION 

No. 98528 

 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

 vs.

TERRANCE WILLIAMS

 DEFENDANT-APPELLANT 

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Court of Common Pleas 

Case No. CR-543577 

Application for Reopening 

Motion No. 466336 

RELEASE DATE: January 17, 2014 

-i- 
FOR APPELLANT

Terrance Williams, pro se 

Inmate No. 624-712 

Mansfield Correctional Institution 

P.O. Box 788 

Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Mary H. McGrath 

Brent C. Kirvel 

Assistant County Prosecutors 

9th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

{¶1} In State v. Williams, Cuyahoga C.P. No. CR-543577, the applicant, 

Terrance Williams, was found guilty of two counts of aggravated murder, kidnapping, 

discharging a firearm on or near a prohibited premises, carrying a concealed weapon, and 

having weapons while under a disability. In State v. Williams, 8th Dist. Cuyahoga No. 

98528, 2013-Ohio-1181, this court affirmed in part, reversed in part, and remanded for a 

limited resentencing hearing for purposes of addressing the multiple aggravated murder 

convictions as being allied offenses subject to merger. 

{¶2} Williams, pro se, has filed with the clerk of this court an application for 

reopening. He asserts that he was denied the effective assistance of appellate counsel for 

failure to raise the alleged ineffectiveness of his trial counsel. Specifically, Williams 

maintains that his trial counsel should have requested jury instructions on the 

lesser-included offense of involuntary manslaughter and that trial counsel should have 

retained independent expert witnesses in the areas of trace evidence and DNA analysis. 

We deny the application for reopening for the reasons that follow. See App.R. 26(B)(6). 

{¶3} Having reviewed the arguments set forth in the application for reopening in 

light of the record, Williams has failed to meet his burden to demonstrate that “there is a 

genuine issue as to whether the applicant was deprived of the effective assistance of 

counsel on appeal.” App.R. 26(B)(5). 

{¶4} In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, the 
Supreme Court specified the proof required of an applicant as follows: 

the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a 

defense request for reopening under App.R. 26(B)(5). [Applicant] must 

prove that his counsel were deficient for failing to raise the issues he now 

presents, as well as showing that had he presented those claims on appeal, 

there was a “reasonable probability” that he would have been successful. 

Thus [applicant] bears the burden of establishing that there was a “genuine 

issue” as to whether he has a “colorable claim” of ineffective assistance of 

counsel on appeal. 

Id. at 25. 

{¶5} Williams has not established his claim for ineffective assistance of appellate 

counsel for failing to question trial counsel’s effectiveness for not requesting an 

involuntary manslaughter jury instruction. It cannot be established from the record that 

trial counsel was ineffective for not requesting a jury instruction on the lesser included 

offense of involuntary manslaughter. The record does not support that instruction and, 

even if it did, the decision of whether to request a lesser-included offense jury instruction 

is deemed trial strategy. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996) 

(“Failure to request instructions on lesser-included offenses is a matter of trial strategy 

and does not establish ineffective assistance of counsel”); State v. Thomas, 40 Ohio St.3d 

213, 533 N.E.2d 286 (1988). 

{¶6} “Even though an offense may be statutorily defined as a lesser included 

offense of another, a charge on such 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.” Thomas, 40 Ohio St.3d at 
paragraph two of the syllabus. “[A]n instruction on the lesser included offense of 

involuntary manslaughter will be given in a murder trial only when, on the evidence 

presented, the jury could reasonably find against the state on the element of 

purposefulness and still find for the state on the defendant’s act of killing another.” Id.

at 216. 

{¶7} Williams believes that the testimony of the witnesses at trial established the 

elements of kidnapping but did not prove he had an intent to kill Darden. He maintains 

this establishes that his trial attorney had no strategic reason for failing to request an 

involuntary manslaughter instruction. 

{¶8} However, several witnesses testified not only that Williams removed Darden 

from the house at gunpoint, but they also stated that they saw Williams shoot Darden. 

Some witnesses testified that after Darden fell from the first gunshot, Williams dragged 

him from the street to the sidewalk and shot him again. Then, Williams sustained a 

gunshot wound, causing him to fall on top of Darden. Some witnesses did not see what 

happened but heard gunfire. It was within the province of the jury to ultimately determine 

whether all, some, or any of the testimony and evidence was credible, however, this 

record did not support an instruction on involuntary manslaughter. Thomas, 40 Ohio St.3d 

at 217 (finding an involuntary manslaughter instruction was not proper where “under no 

reasonable view of the evidence, even in a light most favorable to the accused, could the 

jury have found that Thomas did not purposely intend to cause the death of Newhouse.”) 

{¶9} Alternatively, it is a recognized trial strategy to forego lesser-included offense 
instructions as an election to seek acquittal rather than to invite conviction on a lesser 

offense. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980) (even if trial 

counsel’s strategy is questionable, tactical decisions do not amount to ineffective 

assistance of counsel); see also State v. Jones, 8th Dist. Cuyahoga No. 80737, 

2003-Ohio-4397, ¶ 8. Based on the foregoing, appellate counsel was not ineffective for 

choosing not to pursue an ineffective assistance of counsel claim on this basis. Jones, 

2003-Ohio-4397, ¶ 8 (finding appellate counsel was not ineffective for not asserting 

ineffective assistance of trial counsel for not seeking an involuntary manslaughter jury 

instruction). 

{¶10} Next, Williams contends his appellate counsel should have raised the issue 

of trial counsel’s failure to investigate his case. In this regard, Williams refers to the 

negative gunshot residue test of his hands and clothing and the DNA test results. 

However, the record reflects that counsel fully developed and challenged this evidence, 

through cross-examination, at trial. 

{¶11} Williams maintains his trial counsel should have hired independent experts 

in trace evidence and DNA analysis. However, Williams can only speculate that such 

assistance would have changed the outcome in this case. There is nothing in the record to 

determine whether any such expert evidence would have been favorable to Williams. 

Further, the decision of whether to retain an independent expert is trial strategy and does 

not support a claim for ineffective assistance of trial counsel. State v. Nicholas, 66 Ohio 

St.3d 431, 436, 613 N.E.2d 225 (1993) (“the failure to call an expert and instead rely on 
cross-examination does not constitute ineffective assistance of counsel.”) Appellate 

counsel was not ineffective by not raising this meritless claim. 

{¶12} Williams also asserts that his appellate counsel was ineffective by not 

assigning prosecutorial misconduct as an error. Williams essentially contends that the 

state engaged in the subornation of perjury based on Garrick Dalton’s conflicting 

statements and testimony. Williams suggests that the state gave Dalton a “deal” in 

exchange for his alleged assistance in securing a conviction against him. Dalton was 

subject to cross-examination and denied receiving anything in exchange for his testimony. 

 Appellate counsel addressed the conflicts in Dalton’s testimony and specifically 

indicated that his testimony was not reliable in arguing that Williams’s convictions should 

be reversed and vacated. There was no evidence that the state permitted or knowingly 

elicited perjured testimony from Dalton. Therefore, it was proper for appellate counsel to 

address and challenge Dalton’s credibility through errors alleging that Williams’s 

convictions resulted from insufficient evidence or were against the manifest weight of the 

evidence. 

{¶13} Williams has not met the standard for reopening. Accordingly, the 

application for reopening is denied. 

__________________________________ 

KENNETH A. ROCCO, JUDGE 

MARY J. BOYLE, A.J., and 

LARRY A. JONES, SR., J., CONCUR