COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59064 : : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND JARROLD ARMOUR : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-245157 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, Cuyahoga DEA L. CHARACTER FLOYD, Esq. County Prosecuting Attorney CYNTHIA D. SMITH, Esq. , Assistant 13006 Buckeye Road Prosecuting Attorney Cleveland, Ohio 44120 Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, J.: Defendant-appellant, Jarrold Armour, was indicted for one count of murder (R.C. 2903.02) and one count of receiving stolen property (R.C. 2913.51). The first count contained a gun speci- fication. At trial appellant asserted the affirmative defense of self-defense. The jury rejected the charge of murder as well as appellant's claim of self defense and found appellant guilty of the lesser included offense of voluntary manslaughter (R.C. 2903.03)/1\ along with the gun specification. Appellant was also convicted of receiving stolen property (R.C. 2913.51)./2\ The present appeal stems from these convictions. On October 8, 1989, in the late evening hours, appellant and his wife, Yakita Armour, their infant child, and Gregory Armour, appellant's brother, were waiting for a bus at East 93rd /1\ R.C. 2903.03 defines voluntary manslaughter and states in relevant part: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. /2\ R.C. 2913.51 defines receiving stolen property and states in relevant part: (A) No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe it has been obtained through commission of a theft offense. -3- Street and Kinsman en route home from appellant's mother's home. The bus stop was located in front of a gas station which had a mini-mart on the premises that was open on the night of the incident. Appellant stated that as his family waited for the bus a car stopped across the street and three males got out of the back and walked into a vacant parking lot. According to appellant, a minute later the car pulled over onto the sidewalk adjacent to the gas station. The driver and a female passenger were in the vehicle. Appellant testified that the driver of the vehicle, the decedent, Larry Johnson, began pointing at him saying, "this guy must think he's hard or something." Appellant claimed he never said anything to Johnson and that Johnson nonetheless, began to approach him. Appellant stated that as Johnson started to approach, the three males who had previously exited the vehicle, crossed the street and began to approach Johnson's parked vehicle. As one of the three males approached, he took off his coat. Appellant stated Johnson's friends continued to come towards him even though appellant continued to back up from the group. Appellant testified that he put his hand on a pistol he was carrying and took the safety off. Appellant stated he was frightened and claimed Larry Johnson had an object on his person which he could not see but which appellant believed to be a weapon. Appellant claimed that as Larry Johnson continued to approach, Johnson "fiddled" at his side. Appellant claimed Johnson made some sort of movement and appellant in turn fired -4- his gun at Johnson. Appellant stated that, after he fired the shot, Larry Johnson and the three males returned to the vehicle. Appellant claimed the group then tried to run him over in the vehicle. Appellant fled the vicinity and discarded the weapon on top of a building. Appellant made his way to his aunt's house and spent the night there. The following day appellant learned that Larry Johnson had died from the gunshot and immediately turned himself in to the police. Bridget Moore knew the victim, Larry Johnson, and was in the vehicle with Johnson and the other males on October 8, 1989. Moore testified for the state and identified the occupants of the car as Mike Webster, Kevin Phillips and Larry Johnson's brother, Ernie. Moore stated they were out for a ride that night and were drinking beer. Ernie, Kevin and Mike, she stated, got out of the car that night to relieve themselves. The victim stopped the car at a vacant lot at East 93rd and Kinsman, across the street from a gas station and the bus shelter where appellant and his family were waiting for the bus. The victim realized he needed some gas, Moore stated, so he made a U-turn on East 93rd into the gas station. Moore stated that as they pulled into the gas station, appellant was walking back and forth from the bus stop to see if the bus was coming and was blocking their entrance to the gas pump. Moore said that the victim got out of the car, and had words with the appellant. Moore testified the victim was unarmed and an argument ensued between the appellant and the -5- victim. Ernie, Mike and Kevin then started coming across the street. Moore claimed Ernie grabbed the victim's arm in an attempt to put him in the car just prior to the moment that appellant shot the victim. Moore stated appellant shot the victim as Ernie Johnson was trying to pull him in the car. Moore claimed the victim and appellant never moved closer to each other during the course of the argument. Moore stated that after appellant fired the shot the victim grabbed his stomach and said, "I'm shot." The victim then fell down on the car hood. Ernie then grabbed the victim and threw him in the car. Ernie got into the driver's seat and chased appellant with the car for about three to four minutes and then stopped and drove the victim to a hospital. On cross-examination, Moore reiterated that at the time the victim was shot, Ernie had the victim by one arm and was trying to pull him into the car. The victim was not resisting his brother's entreaties Moore claimed, but as they made a step towards the car appellant shot the victim. Ernie Johnson also testified for the state. He claimed that after he, Kevin and Michael were dropped off across the street from the gas station, the victim and Moore made a U-turn into the Gulf station. Ernie stated he saw the victim get out of the car and talk to appellant. As he made his way over to the gas station, Ernie claimed he heard the victim and appellant arguing. Ernie stated he took off his sweater, threw it in the car and grabbed his brother's arm. Ernie claimed that neither the victim -6- nor appellant had gotten closer than when he first observed them from across the street. Ernie grabbed his brother's right arm and pulled him back and at that point, according to Ernie, the appellant shot the victim. Ernie claimed he did not observe anything in the victim's hand. After the appellant fired the shot he stood there for a moment and then started running down East 93rd. Ernie stated he had never seen appellant prior to that day. Yakita Armour, appellant's wife, testified on behalf of appellant and stated that she saw the victim's vehicle come down East 93rd and observed the three males exit the vehicle. She stated that the car made a U-turn into the gas station and stopped in front of the pumps. She stated that a man and woman were in the front seat of the vehicle and that the three males returned to the vehicle. When the three males returned to the vehicle, she claimed the victim got out of the car and the four males began to approach appellant. Appellant, she claims, was backing up, trying to get away. Yakita testified that she heard the victim state to the other three males, "This is the nigger, this is the nigger he thinks he a dog." Yakita stated her husband didn't say anything in response, but just kept backing up. One individual took his jacket off. The victim kept approaching and reached for something. At that point, she stated, appellant fired the gun. After the gunshot appellant ran from the scene, leaving her alone with their infant child. On cross-examination, Yakita testified her husband got the gun from -7- his brother Gregory. She claimed appellant knew the gun was loaded and that he carried it in order to protect his family. Gregory Armour, appellant's brother, testified on appellant's behalf and stated that, as they were waiting for the bus that night, appellant would periodically take a step out into the street and look for the bus. Gregory saw the victim's vehicle pull up across the street from the bus stop, saw the three males exit and saw the victim make a U-turn into the gas station. The car, he claimed, pulled up onto the sidewalk and the victim signalled to the three across the street to join him. The three males began to approach the vehicle. The three males reached the end of the car and the victim then got out. The victim, Gregory stated, was pointing at appellant and looking back at the three males. All four males Gregory stated, started walking towards appellant. One individual took off his jacket. Gregory then heard a shot, got scared and ran from the shelter, leaving Yakita and the infant. On cross-examination, Gregory admitted that he never indicated in his written statement that the driver signalled to his friends. Gregory further stated he stole the gun used in the shooting from his former place of employment, and that he told appellant that he found the gun outside the place he worked near a dumpster. Gregory's testimony revealed that neither he nor his brother had ever met the victim or the occupants of the victim's car before the night in question. -8- Linda Colson testified for the state and stated that Gregory Armour worked for her company in July, 1989. In July, 1989 her registered gun was stolen from her office and in that same month, Gregory quit his employment. She stated that she never gave permission to Gregory Armour to take the weapon. Appellant assigns the following ten assignments of error for our review. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, DENYING APPELLANT HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL BY ITS BIAS AND MISCONDUCT AT TRIAL. Appellant argues that remarks made by the trial court in this case gave the jury the impression that appellant's counsel was incompetent, that certain witnesses were not credible and that appellant was guilty, thereby swaying the jury against defendant and denying him a fair trial. The record shows that in six of the complained of instances, the trial court's remarks were made to appellant's counsel outside the presence of the jury. Appellant has failed to show how these remarks, made at sidebars, in the court's chambers and in the courtroom, absent the jury, affected the jury's determination of his guilt. His arguments that these remarks denied him a fair trial are without merit. The remaining complained of remarks, made in the presence of the jury do not demonstrate defendant was prejudiced. In the first complained of instance, the trial court told a defense witness to simply answer yes or no instead of physically -9- demonstrating a response. Appellant's argument that this instruction evidenced bias is not well taken. The trial court retains discretionary authority to control the form of questions. State v. Shields (1984), 15 Ohio App. 3d 112, 114; see, also, Evid. R. 611(A). We do not believe the trial court abused its discretion in instructing the witness to limit his response. Appellant also alleges that he and his attorney were needlessly admonished. The record shows appellant was told to confine his responses to the question posed. When his counsel started to address the ruling the court stated, "I don't want to hear your Honor from anybody out there." We find no prejudicial error to have occurred. We acknowledge that the trial court's response to counsel's attempted objection was unprofessional, inappropriate and evidenced impatience. We cannot say, however, that given the entire record that this comment was so prejudicial as to have denied defendant a fair trial. Appellant next complains that the court improperly testified for another witness. We believe appellant's claim to be unfounded. The record shows that during the direct examination of Gregory Armour, by appellant's counsel, the following occurred: Q. Where did the gun come from that you saw that evening? A. I can't understand that. THE COURT: She said where did the gun come from that you saw that evening. A. It came from Colson's. -10- Q. Where did Jarrold get the gun? A. From me. Q. Where did you get the gun? THE COURT: He just said from Costo's, (sic) that was the first witness. Are you hard of hearing? MS. SMITH: I believe he said Colson's. THE COURT: Colson's. That's what he said in answer to your question. Repeat the question. She is asking where you got the gun again. A. From Colson's. Q. How did you happen to be at Colson's? Why were you at Colson's? A. The Juvenile Court had appointed me there to pay off a car. Q. How long did you work there? A. I'll say about a couple of months, a few months. Q. When did you take the gun? A. I think sometime in July. I'm not sure. Q. How did Jarrold get the gun, Greg? A. I had it, I went over Jarrold's house and I told him I had found the gun up where I work. And then he kept asking me all that night where was it at. And then I showed him. Then he took it from me. And then he kept asking me where did I get the gun from. And I kept telling him I found it at Colson's, when I was coming from the store I sawed it at the side of the building at the garbage can. Q. Was that the truth? A. No. -11- Q. It was a lie? A. Yes. Q. Why did you lie to him? A. Because he would have made me take it back and I wanted to keep it. Q. Did you ever -- strike that. How long had you been working at Colson's when you took the gun? MR. HILOW: Objection. THE COURT: Leading. All the last three questions were leading. Ask another question. Q. When did you take the gun? A. Sometime in July. THE COURT: Asked and answered. MS. SMITH: Thank you. Q. When had you last seen the gun? A. What you mean when I last seen the gun? After I had it? Q. Yes. A. At about, it was about same day I took it. THE COURT: Same day he took it is when he last saw the gun, is what he just said. MS. SMITH: Thank you, your Honor. A. Did you see it October 8th? MR. HILOW: Objection. THE COURT: It's leading, but we're going to ask him did you see it on October 8th out there at 93rd and Kinsman? THE WITNESS: No. -12- THE COURT: You didn't see it? THE WITNESS: No. THE COURT: All right. *** The record shows the trial court repeated in one instance the answer of defendant and in a second instance clarified the witnesses' response. We fail to see how the court's statements prejudiced the appellant. In another instance, appellant complains that the court turned the words of a witness around during appellant's re-cross examination. The record indicates that on re-cross examination of state's witness, Bridget Moore, the following transpired: Q. Miss Moore, where did you say that Larry's hand was? A. Left hand by the side, right arm in Ernie's arm. Q. And why did Jarrold start running? A. I can't answer that. Q. Wasn't Ernie chasing him with the car? MR. HILOW: Objection. She has answered. THE COURT: Was he chasing him with the car at that time? As I understand it, your testimony is after he shot him he took off running. Nobody was chasing, he ran off? THE WITNESS: No, he stood there for a second. THE COURT: Right after that? THE WITNESS: Right after that, yes. -13- The trial court sought a clarification of the witness' testimony and allowed the witness to respond to his question. We fail to see how the jury was prejudicially misled by the court's question especially considering the fact that Moore clearly clarified her testimony in response to the court's question. Appellant next complains of a number of remarks made by the trial court to appellant's counsel and argues that the comments were evidence of the court's bias against him and also influenced the jury in its finding of guilt./3\ We note that appellant made no objections to the trial court's comments nor did he move for a mistrial on the basis that the jurors could no longer reach an objective verdict given the court's conduct. Absent plain error, his failure to object then /3\ The complained of remarks are as follows: 1) After admonishing appellant's counsel that the point she was making had already been made,the court stated, "Continue onto another point if you can find one." 2) After appellant's counsel asked to approach the bench the court stated, "Shoo. Yeah approach the bench." 3) After the court overruled appellant's objection appellant's counsel continued her argument as to why the objection should have been sustained. The court stated, "Shush. *** Perfectly proper question on cross examination." 4) After appellant's counsel asked the same question two times the court asked counsel if she was "hard of hearing." 5) In instructing appellant's counsel not to state the reasons for her objections, the court told her to, "Watch the prosecutor." -14- precludes any objection now. State v. Johnson (October 29, 1987), Cuyahoga App. No. 52940, unreported. While the trial court's remarks to appellant's counsel in the presence of the jury were discourteous, ill-mannered and may have caused appellant's counsel some embarrassment, we find that the contested comments did not cause manifest injustice, nor did they have a high probability of changing the outcome of the trial. In State v. Wade (1978), 53 Ohio St. 2d 182, paragraph two of the syllabus, vacated on other grounds (1978), 438 U.S. 911, the court held: Challenged statements and actions of the trial judge in a criminal case will not justify a reversal of the conviction, where the defendant has failed in light of the circumstances under which the incidents occurred to demonstrate prejudice. Hence, we do not find plain error. The argument is therefore not well taken. The assignment of error is overruled. II THE TRIAL COURT ERRED BY CHARGING THE JURY ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER WHERE EVIDENCE OF SUDDEN PASSION OR FIT OF RAGE WAS LACKING, CONSTITUTING A VERDICT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. In the second assignment of error appellant argues that the trial court should not have charged the jury on voluntary manslaughter, a lesser included offense to murder. Voluntary manslaughter, R.C. 2903.03, is a lesser included offense of murder. State v. Muscatello (1978), 55 Ohio St. 2d 201. -15- Voluntary manslaughter is an inferior degree of murder for "its elements are *** contained within the indicted offense, except for one or more additional mitigating elements ***." State v. Deem (1988), 40 Ohio St. 3d 205, 209. Voluntary manslaughter consists of knowingly causing the death of another "while under the influence of sudden passion or any sudden fit of rage *** brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the *** [offender] into using deadly force ***." R.C. 2903.03(A). The element of provocation mitigates the offender's culpability. Muscatello, supra, at paragraph two of the syllabus. "Some evidence of the mitigating circumstance *** described in R.C. 2903.03 ***" entitles appellant to the lesser included instruction. Muscatello, supra, at 204. (Emphasis added). "Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time." State v. Mabry (1982), 5 Ohio App. 3d 13, paragraph five of the syllabus (emphasis added); State v. Deem (1988), 40 Ohio St. 3d 205. The record contains some evidence which showed that appellant was under the influence of sudden passion or in a fit of rage brought on by provocation occasioned by the victim -16- sufficient to incite appellant into using deadly force. The record contains evidence which showed that, prior to the shooting, the victim yelled several disparaging remarks at appellant and that an argument occurred between appellant and the victim. Appellant claimed the victim called to his three companions across the street while pointing at appellant. The record also contains evidence which showed that the victim and his friends approached appellant. Appellant testified that the group kept coming towards him and that as the victim approached, the victim stated, "This motherfucker must think he's hard or something." Appellant testified that he believed the appellant had a weapon and when the victim made a sudden movement, appellant fired his weapon. We believe this evidence constituted some evidence of the mitigating circumstance described in R.C. 2903.03 and therefore, the trial court did not err in instructing the jury on the lesser included offense of voluntary manslaughter. III THE TRIAL COURT ERRED IN DENYING APPELLANT'S CRIMINAL RULE 29(A) MOTIONS FOR ACQUITTAL FOR THE OFFENSES OF A.) RECEIVING STOLEN PROPERTY UNDER O.R.C. 2913.51 AND B.) VOLUNTARY MANSLAUGHTER UNDER O.R.C. 2903.03, OF WHICH THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE CONVICTIONS. In his third assignment of error, appellant contends that the trial court should have granted his Crim. R. 29 motions for acquittal made at the close of the state's case. -17- Initially we note that the present indictment did not include a charge of voluntary manslaughter, rather, the trial court chose to instruct in this instance on voluntary manslaughter, a lesser included offense of murder, Muscatello, supra. Appellant's motions for acquittal could not, and did not include the lesser included offense of voluntary manslaughter. Therefore appellant's argument that the trial court erred in not granting a motion for acquittal on voluntary manslaughter is not well taken. Appellant argues the state failed to adduce sufficient evidence with respect to appellant having reasonable cause to believe that the gun in his possession had been obtained through the commission of a theft offense. See R.C. 2913.51(A) supra. Specifically, appellant maintains that the state failed to establish by direct evidence that he had guilty knowledge. Rather, it is appellant's position that for the jury to conclude that appellant knew the gun was stolen required an impermissible stacking of inferences. The standard for determining whether a motion for acquittal is properly denied is set forth in State v. Bridgeman (1978), 33 Ohio St. 2d 261, 9 O.O. 3d 401, 381 N.E. 2d 184, syllabus, as follows: "Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal where the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." A motion for judgment of acquittal under Crim. R. 29(A) should be granted only where reasonable -18- minds could not fail to find reasonable doubt. State v. Bridgeman, supra; State v. Martin (1985), 19 Ohio St. 3d 12, 13, 19 OBR 330, 337, 483 N.E. 2d 1157, 1165. State v. Apanovitch (1987), 33 Ohio St. 3d 19, 23. In considering the claim that the conviction was not supported by sufficient probative evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn there- from in the light most favorable to the prosecu- tion, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. (Emphasis added.) State v. Martin (1983), 20 Ohio App. 3d 172, 175. The state's evidence showed that Linda Colson owned a gun and kept it at her place of business in Shaker Heights, Ohio. Colson hired appellant's brother, Gregory, to work for her and he was working for her at the time the gun was missing. Colson stated that in July 1989 when the gun was determined missing, appellant's brother quit his employment with her. Colson stated she never gave permission to appellant's brother to take her weapon. Kathleen McComb, a Cleveland police officer, stated she learned that the weapon in appellant's possession that night, and used in the shooting, was the gun that belonged to Linda Colson. The appellant stated in his written statement to the police that he found the gun he used in the shooting at a baseball diamond in the projects where he lives. Appellant claims the first inference the jury had to make was that appellant's brother stole the gun from Linda Colson and the second inference they had to make i.e., that appellant knew -19- the gun was stolen, was impermissible because it was based on the initial inference. When, as in the present case, a disputed element of the offense charged, i.e., guilty knowledge, is by its nature not susceptible of proof by direct evidence, circumstantial evidence may be used to provide an inference of guilt. State v. Alexander (June 17, 1987), Hamilton App. No. C-860530, C-860555, unre- ported. In a prosecution for receiving stolen property, the trier of fact may arrive at a finding of guilty by inference when the accused's possession of recently stolen property is not satis- factorily explained under all the circumstances developed from the evidence. Barnes v. United States (1973), 412 U.S. 837. What constitutes a reasonable explanation is one of fact and when the resolution depends on credibility, great deference should be afforded the trier of fact. Alexander, supra. In Hurt v. Charles J. Rogers Transportation Co. (1955), 164 Ohio St. 329, paragraph one of the syllabus, the court held that a jury may not make an inference which is based solely and entirely upon another inference absent additional facts or inferences from other facts to support the second inference. However, reasonable inferences may be drawn from another inference if the second inference is based in part upon additional facts. Id. at paragraph two of the syllabus. Likewise, a jury may draw several inferences from one set of facts. Id. at paragraph three of the syllabus; McDougall v. -20- Glenn Cartage Co. (1959), 169 Ohio St. 522, paragraph two of the syllabus. No impermissible stacking of inferences arises, however, where the jury bases a verdict partly on inference arising from the facts and partly on another inference drawn both from those facts and from common experience. Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees (1986), 28 Ohio St. 3d 13. In Motorists the court recently expressed concern about an overly rigid application of the rule against stacking inferences. Id. at 28. We find that from Linda Colson's testimony the jury could have reasonably inferred that appellant's brother stole her gun. It was undisputed at trial that the gun in appellant's possession and used in the shooting was the gun stolen from Linda Colson. There was also evidence in the state's case that appellant, in his written statement to the police, lied about how he came into possession of the weapon. Such independent evidence is sufficient to support a second inference that appellant lied about the weapon because he knew it was stolen. A jury could conclude from common experience that this is why appellant lied. Cf. Motorists Mut. Ins. Co., supra; see, also, Bell v. Giamarco (1988), 50 Ohio App. 3d 61. Viewing the evidence adduced below in a light most favorable to the state, we find it to be such that reasonable minds could reach different conclusions as to whether the element of guilty knowledge had been proven beyond a reasonable doubt. Bridgeman, supra. Given the circumstances, we find the jury might reason- -21- ably have inferred that appellant had cause to believe the gun was obtained in the commission of a theft offense. The argument is without merit. Further, assuming arguendo, there had been a post verdict objection on sufficiency grounds concerning the jury's verdict on voluntary manslaughter, we find the conviction was supported by sufficient evidence. The assignment of error is without merit. IV THE TRIAL COURT ERRED AND DENIED APPELLANT'S RIGHT TO COMPULSORY PROCESS AND A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CON- STITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION BY REFUSING TO PERMIT THE TESTIMONY OF WITNESSES ALL OF WHOM WERE MATERIAL TO APPEL- LANT'S DEFENSE. Appellant argues the trial court improperly excluded the testimony of several witnesses called on his behalf. Appellant initially contends it was error for the court to refuse to compel the attendance of two witnesses, subpoenaed by appellant, when they failed to appear when called to testify. The record shows that Mike Webster and Kevin Phillips were subpoenaed to testify for appellant. On the day they were to testify neither were in court. The record shows, however, that Webster and Phillips had earlier appeared in court, but on the day they were called were not present. Appellant argues the trial court should have suspended the progress of the trial to enforce the attendance of the witnesses. -22- The right [to compulsory process] *** is not absolute and defendant must indicate how the production of the witness would benefit his defense. (Citations omitted.) State v. Owens (1975), 51 Ohio App. 2d 132, 148; see, also, State v. Houston (June 16, 1988), Cuyahoga App. No. 53894, unreported. The present record shows that the trial court did suspend the progress of trial and stated that it was going to order the sheriff to enforce the subpoenas. It was then revealed, however, that, prior to trial, appellant's counsel had never talked to Webster or Phillips. The trial court then determined it would not order the sheriff to enforce the subpoenas but instead would afford appellant an opportunity to contact the witnesses by phone. The court stated that if appellant contacted the witnesses he would then order them to court to save time. The record is not clear as to whether the appellant was successful in making phone contact. Based on counsel's representation to the court that they had never interviewed Phillips or Webster prior to trial, the trial court did not abuse its discretion in refusing to order the sheriff to enforce the subpoenas. Furthermore, appellant failed to make any proffer indicating on the record how the production of these witnesses would have benefited his defense and in the absence of a proffer appellant has waived any error. The argument is not well taken. Appellant next complains that the trial court erred in refusing to allow the coroner to testify in appellant's case-in- -23- chief./4\ Appellant argues that "new evidence" had been discovered since the coroner testified in the state's case-in-chief which would have indicated that the angle of the bullet pattern was consistent with appellant's testimony that the victim lunged toward appellant. The record reflects that appellant's counsel met with the coroner on Wednesday, November, 19, 1987 and further that full disclosure of his findings were made prior to trial. The record shows that appellant thoroughly and effectively cross-examined the coroner concerning the path of the bullet. Appellant's claim that the court's refusal to permit him from exploring "newly discovered evidence" is without merit, as the record shows appellant was familiar with the coroner's report and was allowed broad inquiry into this area. The argument is not well taken. In his last contention appellant argues the court wrongly excluded evidence relevant to appellant's affirmative defense of self-defense. Appellant argues that opinion testimony of a defense witness, Keith Hammock, as to the victim's reputation for violence was wrongly excluded. The record indicates, however, that the trial court suspended Keith Hammock's testimony after an objection was made by the state and told counsel that Hammock could testify at a later point in appellant's case. /4\ The record shows the trial court told counsel that the coroner could be called as a rebuttal witness. -24- The record shows that appellant never recalled Hammock in its case-in-chief. Appellant has waived the argument and cannot now claim error when the record shows he was given an opportunity to recall the witness and chose not to. The assignment of error is without merit. V THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT BY RULING THAT THE PROSECUTION WAS IN COMPLIANCE WITH APPELLANT'S REQUEST FOR DISCOVERY UNDER CRIMINAL RULE 16 AND BY ADMITTING CERTAIN DISCOVERABLE INFORMATION WHICH WAS NOT PRESENTED TO THE DEFENSE PRIOR TO TRIAL. VI THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND DENIED APPELLANT HIS RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN IT FAILED TO GRANT SUCCESSIVE MOTIONS FOR A CONTINUANCE. We will jointly deal with appellant's fifth and sixth assignments of error as they address similar issues, i.e., that prior to trial discovery was not adequately provided. In the fifth assignment of error appellant argues he was denied a fair trial because he was forced to go to trial without inspecting vital information to which he was entitled pursuant to Crim. R. 16. In his sixth assignment of error appellant argues the trial court abused its discretion in denying his request for continuance made three days prior to trial because discovery had not been fully provided him. -25- The record shows that three days prior to the start of trial, the trial court held a hearing on appellant's requests for discovery and his motion for continuance of trial./5\ The record of the hearing shows that at the time appellant's counsel was retained, approximately three weeks prior to trial, the state orally went over the entire contents of its file with appellant's counsel and nine days later appellant was provided written discovery. Appellant on appeal argues that numerous documents and reports critical to his defense were still unavailable on the day of trial and the court was wrong to rule the state was in compliance with discovery and to deny a continuance. Reviewing the record we find that the trial court did not err in ruling the state was in compliance with discovery. The record indicates that prior to trial the state made available to appellant discoverable material that the state had in its custody. The items which appellant claims were not given him were items that either did not exist, were not in the state's /5\ In determining whether the trial court abused its discretion in denying appellant's motion for continuance, our discussion will be limited to the issues presented in appellant's motion for continuance and the issues at the hearing, i.e., whether discovery had been adequately provided by the prosecuting attorney. New issues raised by appellant in its appellate brief concerning the propriety of the court's ruling on the continuance will not be considered by this court. See State v. Williams (1977), 51 Ohio St. 2d 112. -26- custody prior to trial and/or were items the state never intended to use./6\ Next, our discussion turns to whether the trial court abused its discretion in denying appellant's request for continu- ance. Whether to grant or deny a motion for a continuance is a decision entrusted to the discretion of the trial court. State v. Unger (1981), 67 Ohio St. 2d 65. Therefore, the trial court's decision will not be reversed unless the court below has abused its discretion. Id. at 67. In evaluating a court's exercise of discretion, this court must weigh concerns such as the trial court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice against any potential prejudice to a defendant. Id. In State v. Sowders (1983), 4 Ohio St. 3d 143, 145, the Supreme Court, in finding a defense counsel's reasons and infor- mation presented to the trial court in support of a motion insufficient, stated: Finally, defense counsel gave no specifics to support his contention that he needed more time to adequately prepare a proper defense. Counsel did not, for example, state that he was otherwise committed, that he was unable to obtain sufficient discovery from the prosecutor, or that he needed additional time to obtain evidence critical to his defense, such as psychiatric evaluation or medical records. (Emphasis added.) /6\ Furthermore, we note that all of the exhibits now complained of were admitted into evidence without objection and any error in their admission has been waived by appellant. See State v. Williams, supra. -27- Cf. State v. Johnson (1986), 24 Ohio St. 3d 87, 94-95 (abuse of discretion to deny defense counsel time to pursue potentially crucial, newly-discovered evidence involving the presence of unidentified persons at scene of murder.) (Emphasis added.) In the present case the trial record reveals that appel- lant's request for a continuance was based on his assertion that discovery was not adequately provided and/or timely. Appellant complains that summaries of appellant's statements were never provided; that the ballistic report con- cerning the weapon involved in the shooting was not provided prior to trial; that the autopsy report was only provided three days prior to trial; that the pistol was never provided to appellant and that all exculpatory and mitigable material was not provided. We will address the complaints separately. Appellant's allegation that he did not receive all summaries of his statements is without merit. The record shows there was only one written statement of the appellant's and that he was provided that statement. Appellant's contention that he did not receive, prior to trial, State's Exhibit 31, the Forensic Laboratory Report, describing the gun used in the shooting, is true. However, the record shows appellant received a copy of State's Exhibit 32 prior to trial, which is the Forensic Laboratory Report on the bullet recovered from the victim's body. State's Exhibit 32 describes the bullet and states the bullet was fired from a Beretta .25 caliber semi-automatic. The Forensic Laboratory -28- Report appellant did not receive prior to trial mirrors the report appellant did receive and states that the Beretta .25 caliber semi-automatic fired the bullet retrieved from the victim. We are at a loss to see how appellant could have been prejudiced as he was in possession of the same information which State's Exhibit 31 contained. Furthermore, it was uncontested at trial that the weapon involved was used in the shooting. As appellant has failed to demonstrate how he was prejudiced, the argument is not well taken. Next, appellant complains that because he received the autopsy report only three days prior to trial, he was unable to formulate a defense and obtain experts to support his contention that the victim was lunging towards him as appellant fired. We find, after a careful examination of the record, that appellant was not prejudiced by the late delivery of the report. We acknowledge that in some instances an autopsy report received only days prior to trial could impair the formulation of a defense. In this instance, however, the coroner's findings are not at odds with the testimony given by appellant. We find no inconsistencies between appellant's version of the events and the coroner's findings./7\ Prejudice could have resulted for instance if the coroner's report did not coincide with appellant's testi- mony and appellant would have benefited by obtaining expert /7\ The record in fact reveals counsel's request to recall the coroner in his case-in-chief to resubstantiate his version of the event. -29- testimony to contradict the findings of the coroner. We find no prejudice to have resulted in this instance and the argument is not well taken. Appellant complains next that the weapon involved was not provided him prior to trial. We note that the state never had the weapon in its possession and that it remained at the coro- ner's office prior to trial. Appellant could have subpoenaed the weapon. Further, appellant had in his possession, prior to trial, the Forensic Laboratory Report which states that the bullet recovered was fired from the recovered weapon. The record also shows the weapon was never at issue at trial and appellant admitted the shooting. Appellant has failed to demonstrate any resulting prejudice. Appellant also complains that his motion for continuance was wrongly denied because all exculpatory and mitigable evidence had not been provided and because no medical records had been provided. Again, the record shows that the state was in compliance with discovery and further never had in its possession, nor introduced, medical records. Appellant like the state had the ability to obtain the records on his own. The record does not indicate that the trial court abused its discretion in denying the continuance and further appellant has failed to demonstrate how he was prejudiced by the court's ruling. Appellant made no specific evidentiary showing to the trial court as to how the records it complains of would have made a difference in his case. Appellant never filed a motion -30- for a new trial with supporting affidavit showing discovery of new evidence or how that evidence would have favorably impacted his case. Bare allegations and cries of prejudice in the absence of a specific showing cannot be considered. The assignments of error are overruled. VII THE TRIAL COURT ERRED IN RULING CRITICAL EVIDENCE OF THE APPELLANT'S STATE OF MIND INADMISSIBLE, SUBSTANTIALLY PREJUDICING APPELLANT'S BURDEN OF ESTABLISHING SELF-DEFENSE. Appellant claims that the trial court improperly excluded evidence which was essential to his claim of self-defense. To prove self-defense in Ohio it must be established, inter alia, that the person asserting this defense had "*** a bona fide belief that he [she] was in imminent danger of death or great bodily harm and that his [her] only means of escape from such danger was in the use of such force." (Emphasis added.) State v. Robbins (1979), 58 Ohio St. 2d 74, paragraph two of the syllabus;/8\ see, also, State v. Koss (1990), 49 Ohio St. 3d 213, 215 /8\ In Robbins, supra, the Supreme Court set forth the elements of self-defense: (1) the slayer was not at fault in creating the situation giving rise to the affray, (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. Id. at paragraph two of the syllabus. -31- Appellant argues that the trial court improperly disallowed his wife, Yakita, from describing appellant's living conditions and from revealing that appellant had on a prior occasion been shot. Appellant claimed this testimony was relevant to show that, at the time of the present incident, he had a bona fide belief he was in danger of death or great bodily harm. Reviewing the transcript we find appellant's claims to be moot and a discussion of the relevance of Yakita's testimony unnecessary. The transcript reveals that appellant, on direct examination, was allowed to explain to the jury his living conditions and the fact that he had been shot on a previous occasion. (R. 533-534, 561.)/9\ The assignment of error is overruled. /9\ On direct examination appellant stated: Q. *** Would you describe where you live for the ladies and gentlemen of the jury? A. Yes. The neighborhood I stay in, it's a bad environment, everybody down there, they sell drugs, they have a lot of robbing, killing, you know. And they have women they call strawberries, which is known as prostitutes. And the kids can't go out and play in the day time. All through the days they shoot, it don't make no difference what time of day it is. It is constantly shooting. So I keep my kids in the house and I stay there with them. (R. 533-534.) * * * Q. What exactly happened? A. All right. When I got shot in my hand I had made a police report and I told them what had happened at the hospital. (R. 561.) -32- VIII THE TRIAL COURT ERRED IN REFUSING TO ADEQUATELY AND CORRECTLY INSTRUCT THE JURY ON WHETHER THE APPELLANT WAS UNDER A DUTY TO RETREAT AND THE RIGHT ONE HAS TO USE FORCE IN DEFENSE OF SELF AND FAMILY. Appellant argues that the trial court failed to instruct the jury on the third element of the test for self-defense set forth in Robbins, supra, i.e., that "the slayer must not have violated any duty to retreat or avoid the danger." Id. at paragraph two of the syllabus. Appellant also complains that the trial court failed to instruct the jury on the defense of one's family. At the end of the court's charge defense counsel requested the court to "charge on the duty to retreat aspect of the self defense." Noting this exception, counsel stated she was satisfied with the remainder of the charge. Reviewing the court's charge we find appellant's claim, that the trial court failed to instruct on the duty to retreat without merit. The trial court specifically defined the three elements set forth in Robbins, supra, that a defendant must establish in order to show that he acted in self defense. The court explained in its charge that a defendant is privileged to use force which is reasonably necessary to repel an attack. State v. McLeod (1948), 82 Ohio App. 155. Contrary to appellant's claims the charge does not give the impression that defendant had an absolute duty to retreat. (R. 810-811) -33- Further, the court did not err in failing to instruct the jury on the defense of one's family. Ohio has long recognized a privilege to defend the members of one's family. Sharp v. State (1850), 19 Ohio 379. Appellant relies on State v. Williford (1990), 49 Ohio St. 3d 247, which held that it was error for the trial court to not instruct on defense of family. The court stated: If a person in good faith and upon reasonable ground believes that a family member is in immi- nent danger of death or serious bodily harm, such person may use reasonably necessary force to defend the family member to the same extent as the person would be entitled to use force in self- defense. (Sharp v. State [1850], 19 Ohio 379, and State v. Sheets [1926], 115 Ohio St. 308, 152 N.E. 664, approved and followed.) Id. at paragraph one of the syllabus. We find Williford not to be applicable as the facts in the present case are distinguishable. In Williford the assault occurred in defendant's home and the defendant's wife was threatened by the victim with physical harm. In the present case the confrontation occurred in a public area away from where appellant's brother, wife and baby daughter were standing. Further, the record does not show that there ever was a threat to appellant's family. The assignment of error is without merit. -34- IX THE TRIAL COURT ERRED IN A) ADMITTING STATEMENT OF A CONCLUSION BY A PROSECUTION WITNESS AS TO WHAT WAS IN APPELLANT'S MIND REGARDING WHETHER APPELLANT WAS ABLE TO RETREAT AND B) NOT PER- MITTING CROSS-EXAMINATION ON THE SAME ISSUE AFTER AN IN-CAMERA INSPECTION OF THE WITNESS' PRIOR STATEMENT REVEALED AN INCONSISTENCY. In the ninth assignment of error appellant argues that the trial court erred in admitting statements made by Ernie Johnson during the state's case-in-chief. In examining Ernie Johnson, the state asked Johnson the following: Q. After the defendant fired the shot what did you observe regarding the defendant? A. First he just stood there and then he started running towards the Fourth District and then I guess he realized where he was going and then he cut across. MS. SMITH: Objection. THE COURT: Overruled. * * * Q. Now, you indicated that when the defendant first shot your brother he went towards the -- A. Like this way. See where this truck is, he's going at an angle, like this way. And then I guess he realized that way is the police and -- MS. SMITH: Objection. THE COURT: Pardon me? The question is where was your brother. Q. Where did the defendant run after the shooting? -35- THE COURT: Overruled. A. First he went this way towards the truck and then he turned to the left and went down Kinsman. Q. And what building is towards that way on Kinsman? A. The Fourth District. Q. When you say the Fourth District, what do you mean? A. The police station. (Emphasis added.) (R. 268, 273-274.) Appellant argues it was impossible for Johnson to know what the appellant was thinking or what he may have "realized." We agree with appellant that Johnson's statements in which he comments on appellant's state of mind after the shooting were improper and not based upon personal knowledge of the matter. See Evid. R. 602. We fail to see, however, how appellant was prejudiced by these two minimal remarks. It is apparent from the record that the state was trying to elicit testimony from Johnson describing the path of appellant's flight after the shooting. Johnson's brief comments concerning what he believed to be appellant's state of mind during the flight we find to be harmless beyond a reasonable doubt. Appellant's second contention is also without merit. Appellant argues the trial court erred in finding no incon- sistencies in Ernie Johnson's prior statement and in refusing to allow defense counsel to use such statement for purposes of cross-examination. -36- Crim. R. 16(B)(1)(g) authorizes counsel to inspect the witness' statement during trial and to cross-examine the witness concerning any "inconsistencies." In his written statement to police Johnson stated that "the guy who shot my brother started running down Kinsman past the liquor store." In his direct testimony Johnson stated several times that appellant went one way and then he turned and ran down Kinsman. We find no material inconsistencies to exist and no reversible error to have occurred. X THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO REVEAL APPELLANT'S JUVENILE BROTHER'S JUVENILE RECORD, AND SUCH ERROR COMPRISED A MAJOR PORTION OF THE DEFENSE, RESULTING IN SUBSTANTIAL PREJU- DICE. Appellant claims the trial court erred in allowing into evidence testimony elicited by the state concerning Gregory Armour's juvenile record. The record shows that Linda Colson, who testified for the state, stated that she employed Gregory Armour and that he came into her employ in July 1989 through the juvenile court. The record shows appellant failed to object to this testimony. An appellate court need not consider an error which a complaining party should have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Williams, supra. Appellant complains that Gregory's juvenile record was also revealed when the state cross-examined Gregory Armour. The -37- record reveals, however, that on direct examination Gregory stated he worked for Linda Colson because the juvenile court appointed him there to pay off a car. Gregory stated under further questioning by appellant that he worked for Colson a couple of months and stole her gun sometime in July 1989. The assignment of error is without merit. Judgment affirmed. -38- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. JOHN F. CORRIGAN, J., CONCURS. (SEE ATTACHED CONCURRING OPINION) SARA J. HARPER, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION) ______________________________ ANN DYKE, PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59064 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION JARROLD ARMOUR : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: HARPER, J., DISSENTING: I respectfully dissent from the majority's resolution of appellant's first, fourth, and sixth assignments of error. Specifically, I disagree with the positions that the trial court's contested comments failed to amount to plain error; that the trial court did not abuse its discretion in refusing to order the sheriff to enforce subpoenas for two defense witnesses; and that the trial court properly denied appellant's request for a continuance. Three of appellant's assignments of error should have been sustained and the cause reversed and remanded for a new trial. - 2 - I. The appellant asserts that the trial judge, through his questioning of witnesses, his comments to defense counsel, and his comments on the evidence, conveyed his bias against the appellant to the jury. He, therefore, argues that he was deprived of his right to a fair trial. The Due Process Clause entitles a person to an impartial and disinterested trial. In re Murchison (1955), 349 U.S. 133, 136. ("A fair trial in a fair tribunal is a basic requirement of due process.") This requirement of neutrality safeguards against the taking away of life, liberty or property on the basis of an erroneous or distorted conception of the facts or the law. See Mathews v. Eldridge (1976), 424 U.S. 319, 344. Neutrality generates and preserves the feeling that "justice has been done." Joint Anti-Fascist Committee v. McGrath (1951), 341 U.S. 123, 172. On appeal, a court must review the totality of facts and analyze fairness of the trial. United States ex. rel. Bibbs v. Twomey (C.A. 7, 1974), 506 F. 2d 1220, 1223. Trial judges are not only required to be fair and impartial; a trial judge's conduct must also "satisfy the appearance of justice". Offutt v. United States (1954), 348 U.S. 11, 14; see also In re Murchison, supra, 136 (quoting Offutt). The "appearance" should never indicate the judge's belief as to a defendant's guilt to the jury. Socrates' admonition that "'[f]our things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially'", - 3 - Etzer v. Rosenbloom (1948), 83 Cal. App. 2d 758, 765, 189 P.2d 848, should always guide a trial judge's conduct during a criminal trial. Trial judges, however, are not perfect. Like all human beings, trial judges fashion opinions about a defendant's guilt or innocence. Since a trial judge has the burden of moving a trial along in an orderly and efficient manner, Williams v. United States (D.C. 1967), 228 A.2d 846, 848, it is not inconceivable that a trial judge could transmit his or her beliefs to the jury through this mechanical maneuvering. The danger accompanying the transmission of judges' beliefs to juries is the possibility that the judges "*** intentionally or unintentionally 'appear' to behave toward jurors in a way that indicates what they think the outcome should be, thereby setting into motion behaviors and trial processes that increase the likelihood of the occurrence of a certain trial outcome". Note, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials (1985), 38 Stan. L.R. 89, 91. The resultant influential effect has been called a "self-fulfilling prophecy" or an "interpersonal expectancy effect". Id. (citing Merton, The Self-Fulfilling Prophecy (1948), 8 Antioch Rev. 193; R. Rosenthal, Experimenter Effects in Behavioral Research (1976)). The judges' expectations or predictions of trial outcomes are then fully materialized in the juries' ultimate conclusions. - 4 - The appearance of bias alone warrants reversal even if the trial judge is completely impartial. Bollenbach v. United States (1946), 326 U.S. 607. A jury need not be actually prejudiced by a judge's behavior. All that is required is that the jury could infer judicial bias. State v. Larmond (Iowa, 1976), 244 N.W. 2d 233, 236. Appellate courts would be wise not to limit themselves by examining only explicit behavior. A thorough examination of subtle verbal and nonverbal conduct which an appellate court, unfortunately, never has the benefit of viewing from a lifeless and non-emotional transcript/10/\ is tantamount to deciding whether a defendant was denied a fair trial. Reviewing courts should be acutely aware of the ongoing studies of how a trial judge's conduct, including body language, influences the decision making process of the jury or the ultimate outcome. See, e.g., 38 Stan. L.R. 89; Blanck, What Empirical Research Tell Us: Studying Judges' and Juries' Behavior (1991), 40 Amer. U.L.R. 775. In the case sub judice, the majority correctly acknowledges that the trial court's remarks were discourteous, ill-mannered, and a possible cause of embarrassment to appellant's counsel. They, however, only peripherally review the trial court's comments and behavior in a sterile environment. The majority fails to take into account the "appearance" of judicial bias and /10/\ Nonverbal conduct on behalf of the trial judge in the case sub judice is not an issue. In any action, however, trial counsel could object to nonverbal offensive conduct and state the particular conduct objected to upon the record. - 5 - the atmosphere created by the appearance in the courtroom and its impact on the jury. Further, I question the majority's blanket disregard of the trial court's remarks which were made to appellant's counsel outside the presence of the jury. These remarks are an integral part of the trial process, giving insight into the trial court's attitudes towards the parties and the case. If a trial court reveals its attitudes outside the presence of the jury, it is as important to a reviewing court as if the comments were made in the jury's presence. The requirement of neutrality which is required throughout the trial is then subject to doubt as is the case here. As already stated, the most dangerous act by a trial court is the assumption of a stance in a criminal trial. The trial court herein exposed the commission of such an act when it ruled on appellant's Crim. R. 29 motion made after the presentation of the state's case. In ruling, the court stated that: "And the Court would indicate that the State has proven that Jarrold Armour did on October 8, 1989 unlawfully and purposely caused [sic] the death of another, to wit: Mr. Larry Johnson. "*** "I find there was a specific intention to kill in this particular instance." I am also astonished by the trial court's expression of its opinion on the issue of self-defense. "THE COURT: *** I haven't even decided whether there was self defense yet." - 6 - An accused's right to a trial by jury is constitutionally guaranteed in a criminal prosecution -- trial by jury, not trial by the judge presiding at a jury trial. The forming of expectations for trial outcomes before the presentation of the defense can impermissibly influence the trial process. See, e.g., People v. Barquera (1957), 154 Cal. App. 2d 513, 517, 316 P.2d 641, 644 (where the trial judge stated to defense counsel, "I don't think you have got any defense ***.") The two critical issues herein were whether the appellant caused the death of the decedent and whether the appellant acted in self-defense in causing that death. The majority was not only presented with evidence of bias on behalf of the trial court, but the majority was explicitly handed the trial court's belief as to the appellant's guilt or innocence. Yet, the majority blindly chose to ignore the enormous consequences of the trial court's involvement in trying the appellant on its own where the sole triers of facts were the members of the jury. I cannot, unlike the majority, ignore the fact that the trial court decided the ultimate issues in this case. I likewise cannot ignore the jury's ability to infer this judicial bias. Furthermore, the trial court's treatment of defense counsel accented this bias. Appellant asserted that he was denied a fair trial as a result of the trial court's admonishment of counsel. A trial judge has the duty to admonish counsel, if necessary. State v. Smith (Mar. 9, 1987), Cuyahoga App. No. 51823, unreported, citing Painesville & Eastern Railroad Co. v. - 7 - Pritschau (1904), 59 Ohio St. 438. Appellant's counsel was a newly licensed attorney. The state attempted to explain that the trial court admonished defense counsel because she was "disrespectful", "lacked decorum', and "ignored" rulings made by the trial court". A portion of the dialogue between the trial court and defense counsel in support of defense counsel's "greenness" is cited by the state in its brief. "(Thereupon, the following proceedings were had out of the presence of the jury.) "THE COURT: We are back in session. "Among the rules of courtroom 23C, the following is one of the rules: When counsel has been retained or appointed and is in the midst of a trial, the Court would think it's abhorrent conduct for counsel to be jumping back and forth talking to people who are spectators, running out to the periodically [sic] at least eight to nine times since this case started, running out to the hallways and running. "And I'm speaking of one counsel in particular, she's brand new and I can understand it, but she doesn't understand all my rules, running over to her co-counsel, whispering in the ear. "I'd rather have the co-counsel who is making the questions walk over, as she has on a number of occasions. So we will cease and desist that particular conduct, Dea. "MRS. FLOYD: Pardon me? I don't understand that. "THE COURT: Do you understand that? "MRS. FLOYD: No, I really did not. "THE COURT: Stand up when I address you. Do you understand what I just told you? "MRS. FLOYD: No, I do not. - 8 - "THE COURT: Why not? "MRS. FLOYD: Because I didn't understand what you were saying, your Honor. "THE COURT: I was explaining one of my -- "MRS. FLOYD: I thought you -- "THE COURT: Hey, look, listen when I talk. You keep quiet. I have been nice to you throughout the whole trial. If you were a man you would have contempt at least three times. "MRS. FLOYD: In what respect, your Honor? "THE COURT: You're talking again. You cannot, while you're counsel in a case in this courtroom after we start testimony, run back and forth talk to witnesses or run out out [sic] in the hallway. You can't go back and talk to spectators. And you can't run over to her every time you feel like it and whisper in her ear. The better method is to sit there until the break and when she finished. "MRS. FLOYD: How can I? "THE COURT: When you want to talk to her, look at her and have her walk over to you with that. "That's my order. If I see any type of conduct contrary to my order after I've explained it to you, you will be held in contempt. Thank you. "MRS. FLOYD: Can I get some clarification? "THE COURT: You just heard it. You have been a lawyer three weeks. Sit down. "MRS. FLOYD: Can I get some clarification, your "THE COURT: You what? "MRS. FLOYD: Can I get some clarification so that I understand? I have an investigator that's sitting in the back and I'm not permitted to speak to the investigator? "THE COURT: You're not permitted to run back four or five times a witness, I'll tell you that. - 9 - "MRS. FLOYD: Your bailiff was requesting me to get our witnesses prepared to come here as soon as we were going to call them. I was trying to make sure they were available so I would not delay the Court. "THE COURT: My bailiff will check on any witness you want to check. He was given an order to make sure your witnesses were ready. "MRS. FLOYD: He asked me, on several occasions he asked me where are the witnesses, are the witnesses ready. I was trying to make sure they were prepared so when you would have them come here and testify, your Honor. "THE COURT: Just follow the order as I've given it to you, we will have no trouble. "MS. SMITH: Your Honor, may I address the Court at this time? "THE COURT: What is the purpose? "MS. SMITH: I'd like to make a statement on the record concerning the admonitions that the Court gave to my co-counsel. "THE COURT: Sit down, please. "MS. SMITH: May I make a statement? "THE COURT: Sit down, please. I just ordered you can't. "MS. SMITH: Thank you. "THE COURT: Bring them in. "- - - - - "(Thereupon, the following proceedings were had in the presence of the jury:) "THE COURT: Please be seated, ladies and gentlemen. "Recross examination by Mr. Hilow. "MR. HILOW: Thank you, your Honor." - 10 - I am not convinced that this dialogue does not reveal counsel's frustration with, and not the lack of respect for, the trial court. In addition, the trial court made several other questionable comments to defense counsel./11/\ Although this continuing struggle between the court and defense counsel did not directly demonstrate the court's attitude about the evidence and/or witnesses, it did create an overall negative atmosphere. It is apparent from the record that the trial court was displeased with defense counsel and it does not take much to infer that the jury sensed this displeasure. It also does not take much for this displeasure for defense counsel to transfer to the appellant since the two are viewed as one for trial purposes. See People v. Hefner (1981), 127 Cal. App. 3d 88, 91-92 (where the jury was prejudiced by the trial court's creation of a "negative courtroom atmosphere" through its directing a number of demeaning comments to defense counsel and its hinting to the jury that the prosecution would not engage in the same conduct as defense counsel). As was stated by Judge Learned Hand in Brown v. Waiter (2d Cir. 1933), 62 F.2d 798, 799-800: "A judge *** is more than a moderator ***. Justice does not depend upon legal dialectics so much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge." The negative atmosphere created by the trial court in its acknowledged "unprofessional, inappropriate and evidenced /11/\ See, majority opinion, fn. 3 - 11 - impatience" and in its "discourteous, ill-mannered" and embarrassing remarks denied the appellant a fair trial. II. Appellant asserts in his fourth assignment of error that he was denied his right to compulsory process and a fair trial when the trial court refused to permit testimony of certain witnesses. Although I agree with the majority's disposition of appellant's assignment of error as it relates to the coroner's testimony and evidence of the decedent's violent reputation, I disagree with the disposition of appellant's remaining argument. I would have sustained this assignment of error in finding that the trial court erred in refusing to compel the attendance of two properly subpoenaed witnesses. Appellant subpoenaed, as adverse witnesses, Mike Webster and Kevin Phillips, two men accompanying the decedent at the time of the shooting. According to appellant, Phillips had previously mentioned during pretrial discovery, a backing up motion of appellant at the time of confrontation. It is argued that this evidence was crucial to appellant's claim of self defense. Appellant does not disclose the expected testimony of Webster. The trial court refused to enforce the subpoenas as requested by defense counsel when Webster and Phillips failed to appear at trial. Appellant argues that the court's inaction violated his right to compulsory process and a fair trial. A defendant's right to compulsory process is encoded in Section 10, Article I, Ohio Constitution and the Sixth Amendment - 12 - of the United States Constitution. Washington v. Texas (1967), 388 U.S. 14. The right, however, is not absolute; the use of compulsory process is guided by how the production of the witness will benefit the defense. State v. Owens (1975), 51 Ohio App. 2d 132, 148; State v. Houston (June 16, 1988), Cuyahoga App. No. 53894, unreported. After an initial willingness to issue bench warrants for these witnesses, the trial court chose to not issue said warrants. The reason for the change of heart was that defense counsel never spoke with the witnesses. Defense counsel merely overheard one of the intended witnesses during a pretrial meeting. The relevance of their testimony was, therefore, subject to dispute. The most interesting aspect of this decision to me is that both Webster and Phillips were present in the courtroom during the state's presentation. They, however, were mysteriously absent from the courtroom when called to testify for the defense. There is thus neither an indication that these witnesses were disinterested in the prosecution of the appellant nor that they were unavailable. The appellant admitted to shooting the decedent. He asserted self-defense as his defense. Webster and Phillips were present during the shooting. Anything said by these witnesses would be relevant. The trial court's refusal to compel the attendance of witnesses who showed no willingness to cooperate - 13 - with the defense since they were friends of the decedent, was improper. III. Appellant contends in his sixth assignment of error that the trial court improperly denied him a continuance. The granting or denial of a continuance is a matter entrusted to the "sound discretion" of the trial court. The denial of a continuance does not warrant reversal absent an abuse of discretion. Ungar v. Sarafite (1964), 376 U.S. 575; State v. Swanson (Nov. 9, 1989), Cuyahoga App. No. 56111, unreported. A mechanical test is not used to determine if there is an abuse of discretion; there must be a balancing test which takes into account all of the competing considerations. State v. Unger (1981), 67 Ohio St. 2d 65, 67. In Unger, the Supreme Court of Ohio stated that "*** [w]eighed against any potential prejudice to a defendant are concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice." Id. The court proceeded to list objective factors which a judge is to use in deciding whether to grant a continuance. "***[A] court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case." [Citations omitted.] Id., 67-68." - 14 - The incident for which the appellant herein was arrested for murder occurred on October 9, 1989. The indictment followed on October 10, 1989. Appellant was then assigned counsel. On November 14, 1989, assigned counsel was dismissed and appellant retained counsel on the same date. Defense counsel requested a continuance which the trial court denied, stating that there was more than "ample time" to prepare a defense for the trial scheduled on December 4, 1989. The only action of appellant which contributed to the request is his dismissal of assigned counsel and retention of counsel thereafter. No continuances were previously requested; it is not apparent that a continuance would have caused inconvenience to any party or the court; and defense counsel requested the continuance because a proper defense required more time. Even without going into details about the information that defense counsel sought to find before trial proceeded, it appears that the trial court had no reason to deny the continuance. A request for a continuance on a murder trial when defense counsel only has approximately three weeks to prepare a case is not unreasonable. I would certainly question whether defense counsel was effective if the case was prepared in three weeks time. Much emphasis is placed on appellant's retention of retained counsel and dismissal of assigned counsel, and the assertion that there would have been ample time for assigned counsel to prepare the case. This act by appellant alone does not justify the trial court's refusal to grant any continuance. This case did not - 15 - involve a misdemeanor, or a felony such as robbery. This case involved a murder which appellant admitted shooting the victim but claimed it was self defense. The trial court's insistence that the case proceed to trial as scheduled is mind boggling when cases with lesser crimes are being continued all the time. In conclusion, I find that: "*** the mantle of impartiality indispensable to a trial court's function was discarded 'thereby demolishing the defendant's credibility, his presumption of innocence, and any chance whether guilty or innocent, that he had of a successful defense ***'". Larmond, supra, 237; quoting State v. Johnson (Iowa 1976), 243 N.W.2d 598, 603. Each comment and ruling made by the trial court, and each reaction on behalf of the trial court to the defense was a "*** tile in the mosaic of the trial ***". United States v. Nazzaro (2d Cir. 1973), 472 F.2d 302, 304. The combination of these errors made by the trial court permits me to safely and freely conclude that the appellant was deprived of his absolute right to a fair trial. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59064 : STATE OF OHIO : : : C O N C U R R I N G Plaintiff-Appellee : : O P I N I O N vs. : : : JARROLD ARMOUR : : : Defendant-Appellant : : DATE: J.F. CORRIGAN, J., CONCURRING: I concur in the judgment rendered but I write separately to address the dissent's charge that a "self-fulfilling prophecy" or prejudicial judicial bias tainted the proceedings below. The dissent builds this charge upon the premise that "it is not inconceivable that a trial judge could transmit his or her beliefs to the jury" (dissent at p. 3) in the course of trial proceedings, and that there is "the possibility" (dissent at p. 3) that a trial judge may set "'into motion behaviors and trial processes that increase the likelihood of the occurrence of a certain trial outcome.'" (Dissent at p. 3.) The jurisprudence of this state has required more than speculation and - 17 - possibilities when weighing a claim of judicial bias, however, and instead requires that such claims be supported by showing of prejudice or that the jury was aware of such bias. See, e.g., State v. Wade (1978), 53 Ohio St. 2d 182, paragraph two of the syllabus, vacated on other grounds (1978), 438 U.S. 911 (challenged statements and actions of the trial judge in a criminal case will not justify a reversal of the conviction where the defendant has failed in light of the circumstances under which the incident occurred to demonstrate prejudice); State v. Kay (1967), 12 Ohio App. 2d 38, 49. (statements made by a trial judge during the progress of a trial and within hearing of the jury are of the same effect as though embodied in the charge to the jury, and, where such remarks or questioning may lend themselves to being interpreted as an opinion on the part of the judge as to the credibility of witnesses or of a defendant or an opinion on his part as to the facts of the case, prejudicial error results); State v. Boyd (1989), 63 Ohio App. 3d 790, 794 (trial court's remarks to defense counsel, including a threat of jail, could be construed as a reflection of the court's opinion on the merits and were inappropriately made before the jury). The dissent maintains, in purported reliance upon case law from other jurisdictions, that the appearance of bias alone, apart from the actual effect upon the jury, warrants a new trial. I do not believe that this case law has been accurately characterized or applied here. - 18 - As to the dissent's startling assertion that "the appearance of bias alone warrants reversal even if the trial judge is completely impartial," (dissent at p. 4) the dissent relies upon Bollenbach v. United States (1946), 326 U.S. 607. Nowhere in Bollenbach does such a statement appear. This is not surprising since the Bollenbach case had absolutely nothing to do with judicial bias but rather involved erroneous jury instructions concerning the presumption of guilt. Similarly, the dissent relies upon People v. Barquera (Cal. App. 1957), 316 P. 2d 641 for the proposition that "the forming of expectations for trial outcomes before presentation of the defense can impermissibly influence the trial process." (Dissent at p. 6.) Barquera, however, involved a bench trial and is therefore inapposite as the manifestation of prejudice came directly from the trier of fact. The court explained: "Had this been a jury trial and had the court expressed an opinion in the course of trial in presence of the jury that appellant had no defense, not a voice would be lifted to declare that no prejudicial error had been committed. Juries are daily admonished not to form an opinion or reach a conclusion until the case is finally submitted to them. Why should a judge, sitting in place of a jury, not be subject to the same admonition? The silent and mysterious, if not mystical, processes of the mind are likely to be swayed and prejudices derived by the very utterance of its own words. It therefore behooves him who holds the scales of justice to refrain from suggestions or comments that are calculated to defeat the search for truth. When a judge becomes a trier of fact as well as of the law, the defendant is entitled to the same presumption of innocence and the same right to present a defense that he would have if he were being tried by a jury. In the instant controversy, the judge without specific intention - 19 - to do harm deprived defendant of such rights." (Emphasis added.) As to the dissent's further assertion that a showing of actual prejudicial effect upon the jury need not be demonstrated, pursuant to State v. Larmond (Iowa, 1976), 244 N.W. 2d 233, and that remarks outside of the jury's presence are as "important to the reviewing court as if the comments were made in the jury's presence (dissent at p. 5) Larmond is factually distinguishable from this case, and the remaining cases cited by the dissent directly establish that the presence of the jury is a crucial factor in evaluating a claim of judicial bias. Larmond involved unrefuted evidence of the trial judge's "deprecatory and hostile attitude toward the defense, as well as his partisan zeal for the prosecution, in the courtroom and before the jury." Id. at 236. The court noted that: "While a presiding court should maintain good order and suppress unseemly conduct, it is reversible error to excoriate a defendant in the presence of the jury without just cause. Ladnier v. State, 254 Miss. 469, 474, 182 So.2d 389, 391 (1966)." (Emphasis added.) The Larmond court then determined that the conduct at issue was calculated to arouse prejudice under the circumstances of the case, and the court reversed the defendant's conviction and remanded for a new trial. Moreover, the Larmond court reaffirmed its previous decision in State v. Johnson (Iowa 1976), 243 N.W. 2d 598. In Johnson, the court determined that remarks made by the judge - 20 - while in chambers "'by no means indicated [that the judge] cannot afford the defendant a fair and impartial trial.'" Id. at 602. The court explained: "'As for argument that the jury may have 'speculated adversely to the [appellant] about his absence from the courtroom,' we need only say that, standing alone, it does not establish the necessary 'reasonable possibility of prejudice.' *** [citing authorities].' United States v. Jones, 170 U.S. App. D.C. 362, 517 F.2d 176, 182 (D.C. Cir. 1975),' State v. Blackwell, 238 N.W. 2d 131, 138 (Iowa 1976). "*** "We have scrutinized the trial transcript and conclude, without hesitation, it fails to show the slightest deviation before the jury from the course of neutrality required of a trial judge as announced in the authorities cited. We find no basis in the record to support defendant's contention the language used by the trial judge in addressing defendant, even though out of the presence and hearing of the jury, had a chilling effect on defendant and his willingness and ability thereafter to conduct his defense. "Although we do not approve the intemperate remarks made by the trial judge, it is this court's opinion these remarks did not violate defendant's right to due process. The trial was fair." (Emphasis added.) Id. at 603. Likewise, in People v. Hefner (Cal. App. 1982), 179 Cal. Reptr. 336, cited by the dissent, the court considered "barbed grips and demeaning comments, directed primarily at Hefner's counsel, in the presence of the jurors." Id. at 337, the court stated: "The record here is replete with blunt, caustic and cynical remarks by the trial judge smacking of pro-prosecution bias. Those made in the presence of the jury unmistakably denigrated the - 21 - credibility of defense counsel, his client, his witnesses and his case. ***. "*** "*** If appropriate, these, and similar admonitions, should have been conveyed out of the hearing of the jurors. "*** "Judicial statements tending to show bias do not require reversal for a conviction based on overwhelming evidence of guilt. (See e.g., U.S. v. Poland, (9th Cir. 1981) 659 F. 2d 884.)" Thus, prejudice and the jury's awareness of the challenged conduct are clearly the proper focus of any claim of judicial bias in the course of a jury trial. I do not believe that a showing of prejudice was made in this instance as most of the challenged comments occurred out of the presence of the jury, and those made before the jury did not constitute proscribed manifestations of opinion regarding the quality of the defense. Finally, there is no justification for the following statements on page five of the dissenting opinion. "Further, I question the majority's blanket disregard of the trial court's remarks which were made to appellant's counsel outside the presence of the jury." 1. The majority did not ignore the trial court's remarks but placed them in perspective as mandated by controlling case law. "If a trial court reveals its attitudes outside the presence of the jury, it is as important to a reviewing court as if the comments were made in the jury's presence." - 22 - 2. This general statement is unsupported by any authority and flies in the face of common sense and controlling relevant case law cited in Judge Dyke's opinion. .