State v. Mounts

Summary

In this reopened criminal appeal, the Ohio First District Court of Appeals held that Joshua Mounts received ineffective assistance from both trial and appellate counsel. The court concluded that trial counsel performed deficiently by abandoning examination of a defense expert concerning histology slides, failing to object to certain expert testimony, and failing to object to a prosecutor's closing argument. The court vacated its prior appellate opinion, reversed Mounts's felony-murder conviction, and remanded the case for a new trial.

Holdings

1. Trial counsel performed deficiently by abandoning Dr. Wiens's testimony that she had reviewed the original histology slide and that the review did not change her opinion that J.F.'s injuries were not recent.
2. Trial counsel performed deficiently by failing to object to Dr. Makoroff's expert testimony because the State had not disclosed the expert report required by Crim.R. 16(K), and her opinions exceeded permissible treating-physician testimony.
3. Trial counsel performed deficiently by failing to object to the prosecutor's unsupported assertion that eight additional doctors, who did not testify, would have supported the State's theory that J.F. suffered recent child-abuse trauma.
4. The cumulative effect of trial counsel's deficient performance created a reasonable probability that, absent the errors, the result of the trial would have been different and undermined confidence in the felony-murder verdict.
5. Original appellate counsel was constitutionally ineffective for failing to raise trial counsel's meritorious ineffective-assistance claims in Mounts's initial appeal; therefore, the court was required to vacate its prior appellate judgment and enter an appropriate judgment under App.R. 26(B)(9).

Questions Presented

1. Whether trial counsel rendered ineffective assistance by abandoning defense expert Dr. Wiens's clarification that review of the original histology slide did not alter her opinion that the injury predated Mounts's care.
2. Whether trial counsel rendered ineffective assistance by failing to object to Dr. Makoroff's expert testimony when the State had not disclosed the expert report required by Crim.R. 16(K).
3. Whether trial counsel rendered ineffective assistance by failing to object to the prosecutor's closing argument asserting that eight additional, nontestifying doctors would have supported the State's theory.
4. Whether original appellate counsel rendered ineffective assistance by failing to raise trial counsel's ineffectiveness in Mounts's initial appeal.
5. Whether the remaining assignments concerning jury selection and fundamentally unreliable testimony required decision after the ineffective-assistance claims were sustained.

Disposition

reversed_and_remanded