COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59618 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN W. WREN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-246078. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Michael E. Murman, Esq. 14701 Detroit Avenue Suite 555 Lakewood, OH 44107 -2- MATIA, C.J.: This appeal arises out of the verdict of the Cuyahoga County Court of Common Pleas which found appellant guilty of murder and attempted murder. Appellant assigns seven assignments of error for review. On review, we find no error and affirm the verdict of the trial court. STATEMENT OF FACTS The instant case occurred on the evening of October 31, 1989. That night, one victim was shot to death and a second was the alleged victim of attempted murder. Defendant-appellant John Wren was convicted of the murder and the attempted murder. The only eyewitness testimony concerning the events of that night was given by Anthony Johnson, the alleged victim of the attempted murder. According to Johnson's testimony, on that night he and the murder victim, Theodore Harrison, had just walked out of a store after purchasing their third beer of the day when a car stopped in front of them. Two men got out of the car and approached Johnson and the murder victim (Harrison). Johnson testified that he knew one of the men. That man asked him for a cigarette, but before Johnson could give him the cigarette, the man began to pistol whip him. Johnson testified that as his friend, Theodore Harrison, tried to help him, the other man, defendant-appellant John Wren pulled out a gun, shot Harrison and fired two shots at Johnson as Johnson ran away. -3- Apparently, there were no other eyewitnesses to the shooting. A nearby store worker, however, heard the gunshot, saw the victim Theodore Harrison lying by the curb, and called 911. STATEMENT OF THE CASE On November 8, 1989 the defendant-appellant, John W. Wren, was indicted on one count of aggravated murder (R.C. 2903.01) with accompanying mass murder, gun and aggravated felony specifications. Defendant-appellant Wren was also indicted for attempted murder (R.C. 2923.02 and 2903.02) with gun and aggravated felony specifications attached. On February 22, 1990, the cause was tried to a jury. At the conclusion of the state's case, the defendant-appellant moved for a Rule 29 acquittal. This motion was denied by the court. The defendant-appellant again moved for a Rule 29 acquittal following his defense. This motion was denied. On March 16, 1990, the jury found defendant-appellant guilty of the murder of Theodore Harris, and guilty of the attempted murder of Anthony Johnson. Both guilty verdicts contained gun specifications. On March 16, 1990, appellant was sentenced to fifteen (15) years to life imprisonment for the murder of Theodore Harrison, and five (5) to twenty-five (25) years for the attempted murder of Anthony Johnson. Those sentences to be served consecutively. The defendant-appellant was also sentenced to mandatory three (3) years actual incarceration on each of the two (2) gun specification convictions. These sentences to run concurrently. -4- It is from these convictions and sentencing, that defendant- appellant brings this timely appeal. ASSIGNMENTS OF ERROR Appellant submits two separate briefs for our consideration. One brief has been prepared by defense counsel and the supplemental brief is pro se. We will address defense counsel's brief first and the pro se supplemental brief second. "I.WHETHER OR NOT THE ADMISSION INTO EVIDENCE OF THE POLICE PHOTOGRAPHS USED TO IDENTIFY THE APPELLANT AT TRIAL PROVIDED THE FINDER OF FACT WITH THE REASONABLE INFERENCE THAT THE DEFENDANT HAD HAD PRIOR CRIMINAL INVOLVEMENT AND THUS CONSTITUTED PREJUDICIAL AND REVERSIBLE ERROR." Appellant argues in his first assignment of error that the trial court erred in admitting identification photographs into evidence. Specifically, appellant argues that the photographs were prejudicial and provided the jury with the reasonable inference that appellant was involved in prior criminal activity. This assignment of error is not well taken. The rule in Ohio is that it is prejudicial error to admit into evidence a photograph of the defendant which was obviously taken by the police and which therefore indicates to the finder of fact that the accused had other prior criminal involvement. State v. Breedlove (1971), 26 Ohio St. 2d 178. The record within, however, demonstrates that the police numerals had been removed before the photographs were submitted to the jury for deliberation. The introduction of police photos is not error if -5- prejudicial information is excised. State v. Wilkinson (1971), 26 Ohio St. 2d 185. The photos may have looked like police photographs because of the paired front and side views. This, however, does not by itself give an inference of prior criminal activity. The court notes that the trial judge reserved ruling on the photographs, presumedly for further deliberation on whether to admit them. Absent abuse of discretion, this court will not overturn a decision of the trial court based on reasonable credible evidence. City of Cleveland v. Northeast Ohio Regional Sewer District (1989), No. 55709, unreported. Conclusively, the trial court did not find the photographs impermissibly suggestive. We sustain that judgment. Accordingly, Assignment of Error I is not well taken. ASSIGNMENT OF ERROR II "II. WHETHER OR NOT THE COURT'S REFUSAL TO ALLOW BOTH OF APPELLANT'S ASSIGNED TRIAL COUNSEL TO FULLY PARTICIPATE IN THE TRIAL VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND RESULTED IN REVERSIBLE ERROR." Appellant argues in his second assignment of error that the trial court erred by refusing to permit both of appellant's assigned counsel to participate at trial. Specifically, appellant argues that both attorneys should have been permitted to indiscriminately make objections. This assignment of error is not well taken. -6- ISSUE: WHETHER THE TRIAL COURT IMPERMISSIBLY REQUESTED THAT ONLY ONE DEFENSE ATTORNEY CROSS-EXAMINE AND MAKE OBJECTIONS Appellant Wren in his second assignment of error objects to the trial court's request that only one attorney cross-examine and make objections. The court at a sidebar conference requested the following: "Let the record reflect that the Court has directed counsel that the Court doesn't care which counsel makes objections but which ever lawyer is going to cross-examine a witness will be the one required to make the objections. The court will not permit counsel to alternately and indiscriminately make objections. During the objections, one lawyer will do it, I'm not particular which one will. From this point on, Mr. Sullivan whether you like it or not one lawyer will do it. Do you understand me?" (Tr. 215-216.) Appellant argues that since the case started out as a capital case, he was permitted by statute the assistance of two attorneys. The court notes that in the within case appellant had two attorneys present in court. The court also notes that it was not an abuse of discretion for the court to limit counsel's participation. The court did not say that one counsel had to leave or could not fully participate in the defense. What the court said was that one counsel at a time had to cross-examine and make objections. We find that this was a reasonable limitation. The judge explained that he could not permit counsel to alternately and indiscriminately make objections. We do not find this order to be arbitrary, unreasonable or unconscionable. -7- Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. Absent an abuse of discretion, our court will not reverse the judgment of the trial court. Blakemore, supra. ASSIGNMENT OF ERROR III "III. WHETHER OR NOT THE JURY VERDICT AGAINST THE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENTS OF THE CRIME OF MURDER CREATING REVERSIBLE ERROR." Appellant argues in his third assignment of error that the trial court erred in supporting the jury verdict. Specifically, appellant argues that the jury verdict was against the manifest weight of the evidence. This assignment of error is not well taken. Appellant argues his conviction of murder is against the manifest weight of the evidence, viz: (1) the identity of appellant was not established beyond a reasonable doubt, (2) appellant voluntarily called the police and (3) appellant had alibi witness. None of these arguments prevail. The court in State v. Mattison (1985), 23 Ohio App. 3d 10, held: "In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: "(1) The reviewing court is not required to accept as true the incredible; "(2) whether the evidence is uncontradicted; -8- "(3) whether a witness was impeached; "(4) what was not proved; "(5) the certainty of the evidence; "(6) the reliability of the evidence; "(7) whether a witness' testimony is self-serving; "(8) whether the evidence is vague, uncertain, conflicting or fragmentary." "The court in Mattison counseled that these eight factors were 'merely guidelines to be taken into account when weighing evidence. They are not hard and fast rules which must be followed.' Mattison, supra, at 14. "A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offenses beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. The weight of the evidence and credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. "The test to be applied in deciding whether a conviction is against the manifest weight of the evidence follows: "There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** -9- (Citations omitted.) State v. Martin (1983), 20 Ohio App. 3d 172, 175. The elements of the offense of murder are "purposely causing the death of another." R.C. 2903.02. The record reflects that weighing all the evidence and reasonable inferences, considering the credibility of the defense alibi witness, Wren's girlfriend, the sole eye witness, Anthony Johnson, and other witnesses, to- wit: Johnson's sister Phyllis, Johnson's brother Marvin and store clerk Dorothy Forth, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. Martin, supra. Appellant argues that the one eyewitness, Anthony Johnson did not give reliable testimony. Appellant further asserts that testimony of the store clerk contradicts Anthony Johnson's testimony. The weight of the evidence and credibility of witnesses are primarily for the trier of fact. DeHass, supra. Thus, a reviewing court will reverse on the weight of the evidence only in an exceptional case. State v. Woods (1985), 25 Ohio App. 3d 35, 38. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the conviction beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. Competent, credible evidence supports the jury's verdict. The eyewitness testimony of Anthony Johnson was bolstered by testimony of other witnesses who supplied motive for the shooting. Mr. Johnson stated that when the two men approached -10- him to beat him, they asked "Where are your boys at?" Mr. Johnson believed that this question was in response to a robbery which occurred on the previous day. Eva Taylor-Wren, appellant's common law wife testified that her husband appellant John Wren and his friend had come into the bar the previous night upset about a robbery. Anthony Johnson testified that his cousin may have been involved in the robbery, thus explaining why the two men approached him the night of the murder, and asked him "Where are your boys at?" This testimony provides motive for the shooting. The victim's sister, Phyllis Johnson corroborated Anthony Johnson's testimony that he was running away from the scene of the crime in fear of his life. Miss Johnson testified that she heard the shooting and later saw her brother running out of a field so scared that he urinated on himself. Another witness, John Johnson bolstered Anthony Johnson's testimony that he and the murder victim had been hanging around the store all day waiting for news of a painting job. John Johnson testified that he and Theodore Harrison were supposed to meet and go see the paint job they had to do. Detective Kovacic testified that the police had taken into evidence a half-filled 40 ounce bottle of beer near the scene of the crime. Mr. Johnson testified that he and the murder victim had just bought a 40 ounce bottle of beer before the shooting. Darniece Pritchard gave alibi testimony for the defense. She stated that she had been with appellant all evening, that she -11- and appellant spent the night in a hotel. Amos Woolbright, however, contradicted the testimony of Darniece Pritchard, stating that he had spent approximately forty-five (45) minutes with appellant Wren that night and did not see Ms. Pritchard at all. The credibility of the witnesses is primarily for the trier of fact. DeHass, supra. The fact that appellant Wren voluntarily called police could give an inference of innocence, however, substantial, competent and credible evidence supports appellant's conviction beyond a reasonable doubt. State v. Eley, supra. Accordingly, Assignment of Error III is overruled. APPELLANT'S PRO SE ASSIGNMENT OF ERROR I "I.THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN THAT THE COURT'S INSTRUCTIONS ON THE DETERMINATION OF THE LESSER INCLUDED OFFENSE CONSTITUTED AN 'ACQUITTAL FIRST' INSTRUCTION WHICH DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION." Appellant in his first pro se assignment of error argues that the trial court erred in giving jury instructions. Specifically, appellant argues that the court gave an "acquittal first" jury instruction which prejudiced his case. This assignment of error is not well taken. -12- ISSUE: WHETHER THE COURT GAVE A PREJUDICIAL "ACQUITTAL FIRST" JURY INSTRUCTION Appellant contends that the trial court erred in giving the following jury instruction: "*** In this case, ladies and gentlemen, if you find that the State of Ohio has failed to prove that the defendant purposely caused the death of Theodore Harrison, then you will find the defendant not guilty of murder, and you will then consider whether or not the defendant is guilty of the charge of involuntary manslaughter." (Tr. 811.) Appellant contends that the jury instruction as given amounted to an "acquittal first" instruction. Appellant's argument is without merit. We note first that no objection was made to the jury instruction in order to preserve the error for appeal. Assuming arguendo that an objection had been made by defense counsel, we find the jury charge was not prejudicial in the within case. Appellant relies on State v. Thomas (1988), 40 Ohio St. 3d 213 to support his argument that an acquittal first jury instruction is erroneous. More precisely what Thomas holds is that if a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. State v. Muscatello (1977), 57 Ohio App. 2d 231. The within jury instruction was not in conflict with the holding of Thomas. The jury instruction as given did not expressly require unanimous acquittal on the charged crime, but rather addressed the issue that if the jury could not reach -13- agreement in regards to the State's burden of proof pertaining to purposeful murder, it should go on to consider a lesser included offense. The Thomas court reached its holding by adopting the Oregon Supreme Court's decision in State v. Allen (1986), 301 Ore. 35, 39. Citing an Oregon appellate court, the Ohio Supreme Court in Thomas wrote: "A court may tell a jury it is to first consider the charge in the accusatory instrument and if it cannot agree on a verdict on that charge it should then consider the lesser included offenses submitted in the instructions. *** An instruction to the effect the jury must consider the principal charge first does not prevent consideration of all submitted offenses or set an agenda for the jury deliberations and does not invade the province of the jury." State v. Ogden (1978), 35 Ore. App. 91; followed in State v. Allen, supra. This was precisely what the trial court herein proposed to the jury. The trial court instructed the jury that if they could not reach accord on the purposeful murder charge, to then go to the lesser included offense upon which evidence had been presented. The trial court did not err in its jury instructions. Accordingly, Assignment of Error I is overruled. APPELLANT'S PRO SE ASSIGNMENT OF ERROR II "II. APPELLANT'S CONVICTION AND SENTENCE ON THE FIREARM SPECIFICATION IS ILLEGAL AS A MATTER OF LAW" -14- Appellant argues in his pro se second assignment of error that the trial court erred in its jury instruction regarding the firearm specifications. Specifically appellant argues that the trial court did not give the instruction requiring the jury to prove beyond a reasonable doubt that the firearm was operable. This assignment of error is not well taken. Appellant pro se relies on State v. Gaines, 46 Ohio St. 3d 65 to support his contention that the jury did not consider the issue whether the firearm was operable or could readily have been made operable. The syllabus in Gaines provides: "R.C. 2923.11 and 2929.71(A) requires that, prior to imposition of an additional term of three years actual incarceration for possession of a firearm during the commission of a felony, the state must prove beyond a reasonable doubt that the firearm was operable or could readily have been rendered operable at the time of the offense." Considering the evidence before the court and jury, we submit that the jury could find substantial, competent and credible evidence that appellant's firearm was operable. The record indicates that Cleveland Police Officer Edward Kovacic gave testimony regarding the shooting and the weapon used. "Q.After your visit to the hospital, Detective, were you able to determine the manner of the wounds of the victim? "A.The victim was shot. -15- "Q.Okay. When you sent back to the crime scene with respect to your investigation, what did you find to corroborate the fact that a shooting occurred? "A.Evidence was located, an expended pellet, the projectile of the bullet, the lead part that comes out of the bullet, and went through the body. We found an expended pellet there in the crack of one of the expansion concrete joints. We found a couple of the casings, the part of the bullet that would remain in the cylinder in the gun. "A revolver is the kind of gun that spins around like the old western, or in a case of an automatic, it would be ejected thorough the side, upon the gun firing, it kicks it out. "So we found one expended pellet and two casings." (Tr. 307.) "Q.What kind of casings were found on the scene? "*** "A. Nine millimeter casings." (Tr. 333.) The record further demonstrated medical evidence that the victim had been shot with a gun. Dr. Robert C. Challener, County Coroner testified that: "A.The only injuries that I observed were those produced by perforating gunshot wound, a gunshot wound that entered and then exited. The entrance wound was located in the folded tissue that formed the front of the armpit, and the exit wound was in the upper portion of the back, the upper third of the back, over to the left side." (Tr. 379.) -16- Accordingly, a reasonable juror could conclude from the evidence presented that competent, credible evidence proved beyond a reasonable doubt that the appellant was guilty of conviction on the firearm specification. State v. Eley, supra. Accordingly, Assignment of Error II is without merit. APPELLANT'S PRO SE ASSIGNMENT OF ERROR III "III.THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN THAT ITS FAILURE TO INSTRUCT THE JURY THAT ITS VERDICT MUST BE UNANIMOUS WHICH DEPRIVED APPELLANT OF HIS RIGHT AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION." Appellant argues in his third pro se assignment of error that the trial court erred in its jury instructions. Specifically, appellant argues that the trial court did not properly instruct the jury that its verdict must be unanimous. This assignment of error is not well taken. ISSUE: WHETHER COURT PROPERLY INSTRUCTED JURY REGARDING A UNANIMOUS VERDICT A review of the record indicates that appellant's argument that the court failed to properly instruct the jury regarding a unanimous verdict fails. The court's instructions were very direct in regards to unanimity. "Now, as I indicated, the law will require a concurrence or agreement of all twelve of your number." (Tr. 822.) Previously, the court had instructed the jury that all twelve jurors had to agree with respect to each element of the crime. -17- "Now, with respect to all three documents, ladies and gentlemen, there are twelve numbered lines at the bottom. All twelve of you must agree with respect to each of these documents before you can say you arrived at a verdict. You should designate what your findings are, and all twelve of you must sign regardless of what your verdict is with respect to these counts in this indictment." (Tr. 813.) Accordingly, we find that the trial court met its burden of sufficiently instructing the jury regarding the requirement for a unanimous verdict. Accordingly, appellant's Assignment of Error III is without merit. APPELLANT'S PRO SE ASSIGNMENT OF ERROR IV "INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL." Appellant argues in his fourth assignment of error that his counsel was ineffective. Specifically, appellant argues that counsel's failure to object to erroneous jury instructions was plain error. This assignment of error is not well taken. ISSUE: WHETHER COUNSEL FOR APPELLANT WAS INEFFECTIVE Appellant Wren's argument that his counsel was ineffective is without merit. In order to substantiate a claim of ineffective assistance of counsel, the appellant upon appeal is required to demonstrate that he was deprived of a fair trial. The appellant must affirmatively demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient, and 2) the result of the appellant's trial would have -18- been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. In reviewing a claim of ineffective assistance of counsel, this court is usually required to first examine whether the performance of counsel was seriously flawed and deficient; then this court can proceed to an analysis as to whether the claimed deficient performance was prejudicial to the outcome of the trial. This standard of review has recently been truncated by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St. 3d 136. In Bradley, supra, the court established that it is not always necessary to first examine the deficient performance prong of the Strickland test. In fact, the state court reasoned that the inability of the appellant to demonstrate the prejudicial effect of defense counsel's alleged deficient conduct would ipso facto result in the failure of the claim of ineffective assistance of counsel. "Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. 'An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981).' Strickland, supra, at 691. To warrant reversal, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability -19- sufficient to undermine confidence in the outcome.' Strickland, supra, at 694. *** "*** we note Strickland's admonition that it might not always be necessary to engage in an analysis of both counsel's effectiveness and the prejudicial impact of any of counsel's errors: "'Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure the ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.'" Id. at 142. In the within case, appellant contends that he was prejudiced by counsel's failure to object and preserve for review certain jury instructions appellant pro se assigned as errors in Assignments of Error I, II and III. The court notes, however, that we have summarily disposed of Assignments of Error I, II and III and found no error. Therefore, the inability of appellant to demonstrate the prejudicial effect of defense counsel's alleged deficient conduct -20- ipso facto results in the failure of his claim of ineffective assistance of counsel. See Bradley, supra. Accordingly, Assignment of Error IV is without merit. Accordingly, the trial court is affirmed. Accordingly, the trial court is affirmed. 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 Rules of Appellate Procedure. DYKE, J., CONCURS; BLACKMON, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .