STATE v. HULL, 71 Ohio St.3d 292 (1994)

643 N.E.2d 546

THE STATE OF OHIO, APPELLEE, v. HULL, APPELLANT.

No. 94-2005Supreme Court of Ohio.Submitted November 15, 1994 —
Decided December 23, 1994.

APPEAL from the Court of Appeals for Cuyahoga County, No. 51853.

Appellant, Floyd J. Hull, was indicted for rape, kidnapping, and robbery in 1985 and was subsequently convicted of all changes. He appealed, raising inter alia the issue that he was denied constitutional rights by the exclusion of potential black jurors. The court of appeals affirmed the convictions. State v. Hull (Mar. 19, 1987), Cuyahoga App. No. 51853, unreported, 1987 WL 8134.

Appellant subsequently filed an application to reopen his appeal pursuant to State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, claiming ineffective assistance of appellate counsel. The court of appeals granted the motion, finding that the exclusion issue stated a colorable claim of ineffective assistance of counsel because the former appellate counsel had raised the exclusion issue, but failed to provide a transcript of the voir dire. Considering the claim on the merits, the court held that appellant had established that his appellate counsel was deficient, but had failed to establish prejudice, as required by Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, because the

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record did not reveal the race of the jurors excluded. Accordingly, the court of appeals reaffirmed the judgment of the trial court, but stated that since this issue requires proof of evidence outside the record, appellant could file a second petition for post-conviction relief on this issue. State v. Hull
(Aug. 11, 1994), Cuyahoga App. No. 51853, unreported, 1994 WL 422262. Appellant appeals to this court and moves to supplement the record to identify the race of the excluded jurors through affidavits.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Karen L. Johnson, Assistant Prosecuting Attorney, for appellee.

Floyd J. Hull, pro se.

Per Curiam.

The motion to supplement the record is denied, and the judgment of the court of appeals is affirmed for the reasons stated in its opinion.

Judgment affirmed.

MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.