Petition for Writ of Certiorari — Brandon Alexander, Petitioner v. Ohio

Supreme Court briefJul 29, 2024

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No. 24-_ _ __

In the

Supreme Court of the United States

Brandon Alexander,

Petitioner,

The State of Ohio,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

OHIO SUPREME COURT

Petition for Writ of Certiorari

Andrew S. Pollis (Ohio 0046392)

Counsel of Record

Melissa A. Ghrist (Ohio 0096882)

MILTON AND CHARLOTTE KRAMER LAW CLINIC

CASE WESTERN RESERVE UNIVERSITY

SCHOOL OFLAW

11075 East Boulevard

Cleveland, Ohio 44106

Tel.: (216) 368-2766

Fax: (216) 368-5137

Email: andrew.pollis@case.edu

Email: mghrist-lawclinic@case.edu

Attorneys for Petitioner

Brandon Alexander

QUESTION PRESENTED

When trial counsel objects to the erroneous admission of character evidence

and preserves the evidentiary error, the prosecution in Ohio has the burden on direct

appeal to show that the error was harmless beyond a reasonable doubt. State v.

Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153. Ohio also permits

defendants to raise claims of ineffective assistance of counsel ("IAC") on direct appeal,

including claims based on the failure to object to inadmissible evidence. So the

question presented is:

When a defendant asserts IAC on direct appeal in Ohio for failing to

object to inadmissible evidence and is able to demonstrate deficient

performance, does the Sixth Amendment require the State to meet the

same burden to refute prejudice that would apply in the case of

preserved error?

111

RELATED CASES

The Supreme Court of Ohio:

State v. Alexander, 173 Ohio St.3d 1404, 2024-Ohio-555, 227 N.E.3d

1265 (Feb. 20, 2024), reconsideration denied on Apr. 30, 2024, 173 Ohio

St.3d 1478, 2024-Ohio-1577, 232 N.E.3d 829.

The Ohio Sixth District Court of Appeals:

State v. Alexander, 2023-Ohio-2708, 222 N.E.3d 812 (6th Dist. Aug. 4,

2023), reconsideration denied on Oct. 27, 2023.

The Common Pleas Court of Lucas County, Ohio:

State v. Alexander, Lucas C.P. No. CR-0202101678 (June 10, 2022).

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ 11

RELATED CASES ........................................................................................................ iii

TABLE OF CONTENTS .............................................................................................. .iv

TABLE OF AUTHORITIES .......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ....................................................................................................... 1

JURISDICTION ............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

INTRODUCTION ........................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 3

The State Tried Mr. Alexander Based on an Uncorroborated

Accusation that His Ex-Partner First Raised Immediately After

He Evicted Her .......................................................................................... 3

II.

In the Second Trial, the State Bolstered the Victim's Shaky

Credibility with Inadmissible Character Evidence from a New

Witness-Mr. Alexander's Ex-Wife-and His Counsel Failed to

Object ......................................................................................................... 4

III.

Without Addressing Morris, the Sixth District Found that the

Improper Character Evidence Caused No Prejudice ............................... 6

IV.

On Reconsideration, the Sixth District Held that the Morris

Standard Plays No Role in IAC Cases ..................................................... 8

REASONS FOR GRANTING THE WRIT ..................................................................... 9

The Decision Below Is Wrong ................................................................. 11

II.

This Is an Important Issue, and this Case Is an Excellent

Vehicle for Resolving It ........................................................................... 14

CONCLUSION ............................................................................................................. 15

APPENDIX .................................................................................................................... A

State v. Alexander, 2023-Ohio-2708, 222 N.E.3d 812

(6th Dist. Aug. 4, 2023) (affirming conviction) ................................ Al

State v. Alexander, Sixth Dist. Lucas No. L-22-1183

(Oct. 27, 2023) (denying reconsideration) ..................................... A42

State v. Alexander, Sixth Dist. Lucas No. L-22-1183

(Jan. 2, 2024) (denying motion to certify conflict) .......................... A49

State v. Alexander, 173 Ohio St.3d 1404, 2024-Ohio-555,

227 N.E.3d 1265 (denying jurisdiction) ........................................ A63

State v. Alexander, 173 Ohio St.3d 1478, 2024-Ohio-1577,

232 N.E.3d 829 (Apr. 30, 2024) (denying reconsideration) ............... A64

State v. Alexander, Lucas C.P. No. CR-0202101678

(June 10, 2022) (sentencing entry) .............................................. A65

Excerpt from Volume III of trial transcript, testimony of

M.A. (June 8, 2022) .................................................................. A68

TABLE OF AUTHORITIES

Cases

Bollenbach v. United States., 326 U.S. 607 (1946) ...................................................... 11

Brecht v. Abrahamson, 507 U.S. 619 (1993) ................................................................ ll

Chapman v. California, 386 U.S. 18 (1967) ................................................................ 13

Massaro v. United States, 538 U.S. 500 (2003) ........................................................... 11

Old Chief v. United States, 519 U.S. 172 (1997) ......................................................... 12

State v. Alexander, 2023-Ohio-2708, 222 N.E.3d 812 (6th Dist. Aug. 4, 2023) ........ 3-8

State v. Bond, 5th Dist. Richland, No. 2019CA0033, 2023-Ohio-2361 ........................ 7

State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8 ............................... 13

State v. Marshall, 8th Dist. Cuyahoga No. 109633, 2022-Ohio-2666 .......................... 7

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153 ....................... 2

State v. Nichols, 116 Ohio App.3d 759, 689 N.E.2d 98 (10th Dist. 1996) ............... t. ... 8

State v. Stein, 3d Dist. Logan No. 8-17-39, 2018-Ohio-2621 ........................................ 7

Strichland v. Washington, 466 U.S. 668 (1984) .................................................. 2, 9, 10

Weaver v. Massachusetts, 582 U.S. 286 (2017) ...................................................... 10, 11

Constitutional Provision

Sixth Amendment to the United States Constitution .................................. 1, 9, 11, 14

Statute

28 U.S.C. § 1257 ................................................................................................... :......... 1

Vll

Rules

Fed. R. Evid. 401 ............................................................................................................ 8

Fed. R. Evid. 403 ............................................................................................................ 8

Fed. R. Evid. 404 .......................................................................................................... 12

Fed. R. Evid. 608 .......................................................................................................... 12

Ohio R. Evid. 401 ............................................................................................................ 8

Ohio R. Evid. 403 ............................................................................................................ 8

Ohio R. Evid. 404 .................................................................................................... 12, 13

Ohio R. Evid. 608 .......................................................................................................... 12

Secondary Sources

Carissa Byrne Hessick, Violence Between Lovers, Strangers, and Friends, 85

Wash.U.L.Rev. 343 (2007) ......................................................................................... 8

Michael Buchhandler-Raphael, Loss of Self-Control, Dual-Process Theories,

and Provocation, 88 Fordham L.Rev. 1815 (2020) ................................................... 8

PETITION FOR A WRIT OF CERTIORARI

Brandon Alexander respectfully petitions for a writ of certiorari to review the

judgment of the Ohio Sixth District Court of Appeals.

OPINIONS BELOW

The opinion of the Ohio Court of Appeals for the Sixth Appellate District is

published at 222 N.E.3d 812 (Ohio 2023) and 2023-Ohio-2708. The denial of

petitioner's application for reconsideration in that court is unpublished. The denial of

petitioner's appeal for review from the Supreme Court of Ohio is published at 173

Ohio St.3d 1404 (Ohio 2024), 227 N.E.3d 1265 (Ohio 2024), and 2024-Ohio-555. The

denial of petitioner's motion for reconsideration at the Supreme Court of Ohio is

published at 173 Ohio St.3d 1478 (Ohio 2024), 232 N.E.3d 1478 (Ohio 2024), and

2024-Ohio-1577.

JURISDICTION

On April 30, 2024, the Supreme Court of Ohio denied reconsideration of its

order denying review of the opinion of the Ohio Sixth District Court of Appeals. This

Court has jurisdiction over this timely petition under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the U.S. Constitution provides, in relevant part, "in

all criminal prosecutions, the accused shall enjoy the right ... to have the assistance

of counsel for his defense."

INTRODUCTION

A defendant is on trial in Ohio for rape and two counts of felonious assault

against his former partner. He is tried twice. The first jury acquits him of rape and

hangs on the felonious-assault charges. So Ohio tries him again.

This time, at the end of its case in chief, the State calls a witness it did not call

the first time: the defendant's ex-wife (who is not the victim). The State elicits

testimony about the defendant's aggressive and dishonest character, as exhibited

during that earlier marriage. In Ohio, if defense counsel objects and preserves the

error, the State has the burden on appeal to show that admitting the improper

evidence was harmless beyond a reasonable doubt. Morris, 141 Ohio St.3d 399, 2014Ohio-5052, 24 N.E.3d 1153.

The same standard should apply to IAC asserted on direct appeal when the

failure to object was an obvious instance of deficient performance. But the Ohio

appellate court flipped the burden and rejected Petitioner Brandon Alexander's IAC

claim because (it held) he could not prove prejudice from the State's improper

solicitation of inadmissible and highly inflammatory character testimony from his

previous spouse.

The premise of a Sixth Amendment IAC analysis is that the defendant should

suffer no adverse consequences because of counsel's ineffectiveness. After all, the

right to counsel exists "to protect the fundamental right to a fair trial." Stricldand v.

Washington, 466 U.S. 668, 684 (1984). But the Ohio appellate court left

Mr. Alexander to claw back his right to a fair trial precisely because his counsel was

ineffective in not objecting, in effect watering down the defendant's Sixth Amendment

right to competent counsel. The Court should grant certiorari, reverse the Sixth

District's judgment, and restore equity to the process in Ohio for evaluating the

prejudicial impact of wrongfully admitted evidence challenged on direct appeal.

STATEMENT OF THE CASE

THE STATE TRIED MR. ALEXANDER BASED ON AN UNCORROBORATED

ACCUSATION THAT HIS EX-PARTNER FIRST RAISED IMMEDIATELY AFTER

HE EVICTED HER.

After Mr. Alexander ended his live-in relationship with the victim, M.C., and

asked her to leave his home, she reported to police that he had assaulted her twice

before the relationship ended. The State indicted Mr. Alexander on one count of rape

(Count 1) and two counts of felonious assault (Counts 2 and 3).

In May 2022, the case went to trial the first time. There was no dispute that

M.C. had been assaulted on two occasions; the question was who did it. There were

no other eyewitnesses and no physical evidence identifying the assailant(s). So the

State's case hinged on M.C.'s credibility in testifying that Mr. Alexander committed

both assaults, as well as a rape.

But M.C.'s credibility was suspect. Her trial testimony differed from her prior

explanations of how she incurred-and who inflicted-her injuries. M.C. had

repeatedly told doctors that the assailant in the first assault was her ex-husband

Eddie, a man who previously served a prison term for physically assaulting her in the

past. Alexander, 2023-Ohio-2708, at ,r 17, 19. M.C. had also reported that her injuries

from the second assault were the result of a bar fight. Id. at ,r 21-22. But after

Mr. Alexander ended their relationship, M.C. changed her story. Id. at ,r 17. And at

trial, she claimed that the assailant was Mr. Alexander both times and that her prior

statements were lies. Id. at ,r 22-23.

The first jury acquitted Mr. Alexander of rape and hung on the two feloniousassault charges, apparently unable to see past M.C.'s credibility issues. Id. at ,r 5.

The trial court declared a mistrial on those charges (Counts 2 and 3). Ibid.

II.

IN THE SECOND TRIAL, THE STATE BOLSTERED THE VICTIM'S SHAKY

CREDIBILITY WITH INADMISSIBLE CHARACTER EVIDENCE FROM A NEW

WITNESS-MR. ALEXANDER'S EX-WIFE-AND HIS COUNSEL FAILED TO

OBJECT.

Eager on retrial to secure convictions it failed to obtain the first time, the State

called a new witness at the end of its case-in-chief: Mr. Alexander's ex-wife, M.A. The

State's ostensible purpose for calling M.A. was to establish that Mr. Alexander gave

her a false explanation (a car accident) for his unavailability when M.A. was in the

hospital, the falsity of which the State argued was suggestive of his consciousness of

guilt. See Alexander, 2023-Ohio-2708, at ,r 64.

But instead of confining M.A.'s testimony to that discrete issue, the State

exploited the opportunity to malign Mr. Alexander's character through the testimony

of the witness-his ex-wife-who the jury would presumably infer had the best

insight into his character. The State developed M.A.'s testimony around her

experience with Mr. Alexander's "angry and aggressive behavior.'' Id. at ,r 67.

M.A.'s direct examination began with her describing her "overall" relationship

with Mr. Alexander. (6/8/23 Trial Transcript, Vol. III, except attached at Appendix G

("Tr.'') 538:23-24.) She called him "aggressive"-a word that the State immediately

seized on: "And you said aggressive. Brandon Alexander was aggressive?" (Id. at

538:25-539:5 (emphasis added).) M.A. also said, "He's angry, and that caused a lot of

problems in our relationship." (Id. at 539:2-3.) She told the jury that "there [were]

not always truths given" during their relationship. (Id. at 539:21-22.) And the State

seized on the opportunity to undermine Mr. Alexander's credibility, playing up

Mr. Alexander's supposed propensity to lie throughout M.A.'s testimony: "You're not

buying what Brandon Alexander is selling, are you, [M.A.]?" (Id. at 549:6-7.) The

State introduced all this testimony during its case in chief, before Mr. Alexander had

made the decision whether to testify in his own defense.

During M.A.'s testimony, defense counsel stayed silent. She raised no

objections to the inadmissible character evidence. And she conducted no crossexamination whatsoever. Alexander, 2023-Ohio-2708, at ,r 37.

Throughout the trial, the State harkened back to M.A.'s improper and

devasting testimony. It wove soundbites from M.A.'s testimony into its crossexamination of Mr. Alexander, making his anger a central theme and framing him as

a liar:

•

"You didn't argue with your ex-wife, ... ?" (Tr. 622:16.)

•

"So you can argue with your ex-wife, but you are not an

arguer ... ? " (Id. at 623:2-3.)

•

"You sound like a really peaceful unargumentative guy." (Id. at

631:19-20.)

•

"And it's interesting that you point the finger at [M.A.] and say

how she wants to twist everything around. We have seen quite a

bit of that from you this afternoon." (Id. at 620:24-621:2.)

•

"You are putting your own twist on how you want us all to

interpret those words, correct?" (Id. at 622:3-4.) 1

In closing argument, the State again highlighted M.A.'s words, asking the jury

to "remember" what [M.A.] said, Brandon's ex-wife, ... he was the one lying in the

first place. Sounds familiar, doesn't it?" (6/9/22 Trial Transcript, Vol. IV at 758:11,

759:9-10 (emphasis added).) See Alexander, 2023-Ohio-2708, at ,r 56 (quoting the

same portion of closing argument but not including the emphasized text).

As in the first trial, the State had no physical evidence and no other witnesses

to corroborate the victim's testimony. But unlike the first trial, the jury in the second

trial also heard M.A.'s testimony, which the State prominently highlighted. M.A.'s

testimony partially made the difference the State had hoped for: the second jury

found Mr. Alexander not guilty of the first felonious-assault charge (Count 2) but

guilty of the other (Count 3). Id. at ,r 58.

Ill.

WITHOUT ADDRESSING MORRIS, THE SIXTH DISTRICT FOUND THAT THE

IMPROPER CHARACTER EVIDENCE CAUSED No PREJUDICE.

On appeal, Mr. Alexander argued (among other things) that his counsel was

ineffective for failing to object to the improper character evidence elicited during

1 The Ohio appellate court characterized these moments as times when the State

"challenged" Mr. Alexander, see Alexander at ,r 45-46. The actual language the State

used is important to understand how heavily the State exploited the improper

character testimony.

M.A.'s testimony (a commonly accepted procedure in Ohio if the record is developed

enough to assess IAC on direct appeal). Mr. Alexander explained that the standard

for assessing prejudice in this IAC context is the harmless-beyond-a-reasonabledoubt standard that the Ohio Supreme Court articulated in Morris, 141 Ohio St.3d

399, 2014-Ohio-5052, 24 N.E.3d 1153. In sum, unless the improper character

evidence was harmless beyond a reasonable doubt, Mr. Alexander was entitled to a

new trial. Other Ohio appellate courts had applied Morris precisely in the IAC

context. See State v. Stein, 3d Dist. Logan No. 8-17-39, 2018-Ohio-2621; State v.

Marshall, 8th Dist. Cuyahoga No. 109633, 2022-Ohio-2666; State v. Bond, 5th Dist.

Richland, No. 2019CA0033, 2023-Ohio-2361.

The Ohio appellate court resolved Mr. Alexander's IAC argument without

addressing whether counsel was ineffective; instead, it held that Mr. Alexander

suffered no prejudice from the improper evidence, so counsel's ineffectiveness was

moot. The court explained that "[t]he jury resolved the factual issues ... considering

credibility in the context of all the evidence" and Mr. Alexander's statement to M.A.

about having been in a car accident. Alexander, 2023-Ohio-2708, at ,r 74, 78. It also

relied on the jury's split verdict as evidence showing "that [Mr. Alexander] was [not]

actually prejudiced." Id. at ,r 78.

By jumping to the prejudice analysis, the court elided over whether trial

counsel was ineffective in failing to object. 2 It noted that counsel's failure to object

2 The Ohio appellate court nevertheless suggested that character traits of anger and

aggression do not show an improper propensity to commit felonious assault. See

Alexander at ,r 66-67. That conclusion is detached from common sense and social

could be "deemed as [IAC] 'where resolutions of factual issues turn solely upon the

credibility of those witnesses.'" Id. at ,r 76 (quoting State v. Nichols, 116 Ohio App.3d

759, 765, 689 N.E.2d 98 (10th Dist. 1996)). The court acknowledged that most of

M.A.'s testimony was problematic. See Alexander at ,r 72. But the court nevertheless

concluded that the jury resolved M.C.'s credibility issues "in the context of all the

evidence" and that he therefore could not meet the prejudice prong of an IAC claim.

Id. at ,r 78.

In its initial decision, the court made no mention of one of Mr. Alexander's

main points in his briefing and oral argument: that the Morris harmless-beyond-areasonable-doubt standard governed the IAC prejudice analysis when counsel's error

led to the admission of otherwise-inadmissible character evidence.

IV.

ON RECONSIDERATION, THE SIXTH DISTRICT HELD THAT THE MORRIS

STANDARD PLAYS No ROLE IN IAC CASES.

Mr. Alexander moved for reconsideration, bringing to the Sixth District's

attention that it had not addressed his argument under Morris-that the harmlessbeyond-a-reasonable-doubt standard applied to the prejudice analysis.

science. See, e.g., Carissa Byrne Hessick, Violence Between Lovers, Strangers, and

Friends, 85 Wash.U.L.Rev. 343, 363 (2007) (explaining the "driving" stereotype that

domestic-violence crimes are "motivated by anger"); Michael Buchhandler-Raphael,

Loss of Self-Control, Dual-Process Theories, and Provocation, 88 Fordham L.Rev.

1815, 1836 (2020) (citing the "[a]mple psychological research" that supports "a strong

connection between anger and reactive aggression"). And regardless of the

application of the propensity rules, there simply was no basis for admitting this

obviously prejudicial testimony under the apposite Ohio evidence rules, largely

identical to their federal analogs. See Ohio R. Evid. 401, 403; Fed. R. Evid. 401, 403.

In denying reconsideration, the Ohio appellate court set up the concrete legal

question that Mr. Alexander now brings to this Court. It held that the Morris

"harmless-beyond-a-reasonable-doubt standard concerns

[only]

error in the

admission of evidence in cases in which that issue was preserved for appeal through

timely objection," not error based on counsel's IAC in failing to object to improper

character evidence. (See 10/27/23 Decision and Judgment Denying Application for

Reconsideration, attached at Appendix B, at 6.)

That reconsideration decision exposed a conflict among Ohio appellate courts

on the extent of a defendant's prejudice burden when raising IAC on direct appeal, so

Mr. Alexander asked the Sixth District to certify that conflict to the Supreme Court

of Ohio. The Sixth District denied that motion on January 2, 2024]. (1/2/24 Decision

& Judgment Entry, attached at Appendix B.) The Supreme Court of Ohio denied

discretionary review and reconsideration. (2/20/24 Entry, attached at Appendix D;

4/30/24 Reconsideration Entry, attached at Appendix E.)

REASONS FOR GRANTING THE WRIT

The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to reasonably effective assistance of counsel. Strickland, 466

U.S. 668. It also guarantees criminal defendants the right to trial by an impartial

Jury.

As the Court is well aware, defendants claiming ineffective assistance of trial

counsel must meet Strickland's two prongs: that counsel's performance was deficient,

and that the deficient performance caused them prejudice. Id. at 687-88, 694. In the

"ordinary" IAC case, prejudice means "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Weaver

v. Massachusetts, 582 U.S. 286, 300 (2017) (quoting Strickland, 466 U.S. at 694).

But sometimes Strickland's prejudice prong serves no useful purpose and

creates unfair disparities in judicial administration. The Strickland Court itself

"cautioned that the prejudice inquiry is not meant to be applied in a 'mechanical'

fashion." Ibid. (quoting Strickland, 466 U.S. at 696). Here, for example, Ohio law

would have relieved Mr. Alexander of a prejudice showing had counsel objected to the

improper character evidence. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d

1153. Why should the result on direct appeal be any different, especially when the

record is sufficient to conclude that there was no strategic justification for counsel's

failure to preserve the error?

Indeed, applying the same prejudice standard on direct appeal is consistent

with Strickland's purpose: "When a defendant challenges a conviction, the question

is whether there is a reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695

(emphasis added). The appellate court's decision below wrongly deprives defendants

of the benefit of a prejudice presumption solely because of counsel's mistake. The

Court should grant certiorari to clarify that in jurisdictions that permit IAC

arguments on direct appeal, trial counsel's deficient performance in failing to object

to improper evidence-when that deficiency is patent in the record-warrants the

application of the same standard for assessing prejudice as applies for preserved

error. The Court should also remind appellate courts that the Sixth Amendment right

to a jury trial necessarily limits an appellate court's ability to conclude summarily

that the error was harmless to the convicted defendant. See, e.g., Bollenbach v. United

States., 326 U.S. 607, 614 (1946) ("In view of the Government's insistence that there

is abundant evidence to [convict the defendant], it may not be amiss to remind that

the question is not whether guilt may be spelt out of a record, but whether guilt has

been found by a jury according to the procedure and standards appropriate for

criminal trials ....").

These clarifications also harmonize perfectly with the Court's expressed

concerns about "postconviction proceedings" that disturb finality and require new

trials after significant time has elapsed. See Weaver, 582 U.S. at 302-03; see also

Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) (higher prejudice standard in habeas

is "tailored to the nature and purpose of collateral review"). Unlike the federal system

and most state jurisdictions, 3 Ohio permits IAC on direct review. So the "differences"

that "justify a different standard" for IAC claims raised in "postconviction

proceedings," see Weaver, 582 U.S. at 302-03, do not exist here.

The Decision Below Is Wrong.

The Court has long recognized that our Nation's legal system forbids convicting

an accused by showing that they committed other crimes or is otherwise a bad person.

3 This

Court and most jurisdictions recognize that IAC claims are best suited for

collateral proceedings to give parties a chance to develop a record to address trial

counsel's deficient performance and any resulting prejudice. Massaro v. United

States, 538 U.S. 500 (2003).

See Old Chief v. United States, 519 U.S. 172, 180-81 (1997) (condemning the practice

of "generalizing a defendant's earlier bad act into bad character and taking that as

raising the odds that he did the later bad act now charged"). That cardinal principle

is embodied in both Fed. R. Evid. 404 and Ohio R. Evid. 404, precluding the

introduction of any character or other-act evidence against a criminal defendant to

demonstrate propensity, except in narrow circumstances not relevant here. It is

likewise impermissible to attack a defendant's character for truthfulness unless and

until he has elected to testify. See Fed. R. Evid. 608; Ohio R. Evid. 608.

The Supreme Court of Ohio has therefore developed a presumption that

improper character evidence prejudices a defendant unless that State can prove that

the error was harmless beyond a reasonable doubt. Morris, 141 Ohio St.3d 399, 2014Ohio-5052, 24 N.E.3d 1153. Yet the appellate court below held that, when defense

counsel's failure to object to the admission of improper character evidence amounts

to IAC, defendants enjoy no presumption of prejudice and instead have to prove iteven on direct appeal. This rule creates an unfair disparity between two otherwiseidentically situated defendants-one whose counsel was effective and preserved the

error, and the other whose counsel was asleep at the switch and neglected to object.

In addressing the prejudice prong of Mr. Alexander's IAC argument, the

appellate court should have applied the Morris test and excised M.A.'s improper

testimony, and every reference to it thereafter, to determine if the State's remaining

evidence "overwhelm[ingly] demonstrates guilt.'' Morris, 141 Ohio St.3d 399, 2014-

Ohio-5052, 24 N.E.3d 1153, at ,r 32. 4 And here, the appellate court would have had

no choice but to reverse under that standard, particularly given three considerations:

(1) the victim's credibility issues; (2) the inability of the jury in the first trial-without

M.A.'s improper character testimony-to reach a verdict on the felonious-assault

charges; and (3) the State's emphasis and reliance on the testimony throughout the

trial and during closing argument.

Applying the Morris harmless-beyond-a-reasonable-doubt standard in the IAC

context would restore defendants like Mr. Alexander to the position they would have

enjoyed but for their counsel's ineffectiveness in not objecting to clearly inadmissible

evidence. 5 The prejudicial impact of improper character evidence is the same whether

analyzed as preserved error or through the lens of IAC. The Court should grant

certiorari and hold that whether trial counsel timely objects to improper character

evidence should not change the prejudice analysis on appeal.

Unlike Ohio courts that use the Morris harmless-beyond-a-reasonable-doubt

standard for evidentiary errors, federal courts use the analogous standard from

Chapman v. California, 386 U.S. 18 (1967) only in the context of constitutional errors.

See Chapman at 24. Mr. Alexander raises no argument about the federal standard

and instead maintains only that Ohio should apply its Morris standard equitably.

5 While the Ohio appellate court elided the ineffectiveness question by focusing on

the prejudice prong of the IAC analysis, the Supreme Court of Ohio has suggested

that a failure to object to improper character evidence is, by definition, ineffective in

Ohio. See State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ,r 130, 133,

136 (counsel's performance is "deficient" if counsel fails to object to character or otheract evidence inadmissible under Ohio R. Evid. 404.

II.

THIS Is AN IMPORTANT ISSUE, AND THIS CASE Is AN EXCELLENT VEHICLE

FOR RESOLVING IT.

It is hard to overstate the importance of a criminal defendant's right to

competent counsel. And to suffer conviction and incarceration on the strength of

testimony that trial counsel should have intercepted is a legal travesty. The Court

should accept this case to confirm that, when considering prejudice from improper

character evidence in a direct-review criminal appeal, the standard is the same

regardless of the pathway for reaching the prejudice question. In other words,

whether arising directly from preserved error or from IAC, a defendant in Ohio is

entitled to the same result. The Sixth Amendment requires no less.

This case is the perfect vehicle for clarifying this standard. Mr. Alexander fully

briefed the issue in the appellate court, and it served as the basis for his

memorandum in support of jurisdiction in the Supreme Court of Ohio. (See 4/5/23

Refiled Brief of Appellant Alexander; 8/14/23 Application for Reconsideration;

12/11/23 Memorandum in Support of Jurisdiction.) Moreover, if Mr. Alexander's

counsel had objected to the improper character testimony, there is no serious question

that he would have been entitled to a new trial. Instead, he sits in prison because his

counsel failed to utter that one all-important word on the record. The Court is

unlikely to find a better vehicle to shore up the Sixth Amendment right to competent

counsel in the context of inadmissible character evidence.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,