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State v. Thompson3/25/2003
OPINION AND JOURNAL ENTRY
JUDGMENT: Application denied.
. Defendant-Appellant Todd Thompson filed an application for delayed reopening of his appeal. Because he failed to establish good cause for his untimely filing, this application is denied.
. On April 8, 1997, appellant severely beat his girlfriend, Annette Bingham. An ambulance arrived after the beating, but Annette refused treatment. The ambulance was recalled a couple hours later to transport Annette to the hospital where she was examined and released. No CAT scan was performed, but she was told to follow up with her family physician. Two days later, she returned to the hospital. When a CAT scan showed brain swelling, she was life-flighted to Pittsburgh. On April 14, 1997, Annette died of severe cerebral edema due to blunt force trauma to the head. Appellant was indicted on charges of aggravated murder and felonious assault. A jury trial commenced on June 23, 1997. The jury found appellant guilty of non-aggravated murder and felonious assault. Appellant was sentenced to consecutive sentences of eight years and fifteen years to life. A timely appeal followed resulting in our decision in State v. Thompson (Nov, 18, 1999), 7th Dist. No. 97 JE 40.
. Appellant's attorney set forth three assignments of error on appeal. The first assignment of error argued that certain testimony was inadmissible hearsay. We determined that the testimony was admissible under the excited utterance exception. The second assignment of error alleged that the court incompletely instructed on voluntary manslaughter. We determined a lack of prejudice because appellant was not entitled to a voluntary manslaughter instruction in the first place. The third assignment of error contended that the verdict was against the weight of the evidence. Under this assignment, appellant first argued that he was too intoxicated to form the requisite intent for murder. We sustained the jury's refusal to find that intoxication negated his intent. Appellant also argued that the hospital committed medical malpractice when it released Annette on April 8, 1997 and thus an intervening force removed his assault from being the cause of Annette's death. We stated that the jury could properly believe the physician who testified that he does not believe that a CAT scan on April 8 would have revealed the swelling. We set forth the general rule that a defendant is responsible for a victim's death regardless of whether different or more skillful medical treatment may have saved the victim's life. State v. Johnson (1978), 56 Ohio St.2d 35, 40. We also noted that there was no evidence of gross medical malpractice which could be an exception to the general rule if it is established to be an independent, intervening cause. As aforementioned, our decision was released on November 18, 1999.
. Appellant filed a motion for delayed reopening on February 12, 2003. He alleges that his appellate counsel, who was also his trial counsel, was ineffective. Specifically, he states that on May 30, 1997, his attorney filed a motion for authority to hire a medical doctor to aid in his defense. He claims that the court never ruled on this motion and thus he never received an expert to rebut or clarify the medical testimony. Thus, he argues that the trial court committed plain error when it failed to rule on the motion, that he was entitled to an appointed expert, and that his attorney was deficient in failing to ensure the motion was ruled upon and failing to assign the lack of an appointed expert as error on appeal.
. A criminal defendant may apply for reopening of his direct appeal based upon a claim of ineffective assistance of appellate counsel. App.R. 26(
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