COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59820 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHARLES V. JOHNSON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 6, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-246,047 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor CARMEN MARINO, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HYMAN FRIEDMAN, Public Defender WARREN L. McCLELLAND, Assistant The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 2 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Charles Van Johnson, was indicted on November 2, 1989 on one count of aggravated murder (R.C. 2903.01), with felony-murder and firearm specifications, and one count of aggravated robbery (R.C. 2911.01), with a firearm specification. Appellant pleaded not guilty, and this cause proceeded to a bench trial, appellant having waived a trial by jury. Prior to trial, the state amended the indictment to strike the specifications contained in both counts. The trial court found appellant guilty on both counts. Appellant timely appeals. For the reasons set forth below, we affirm. The pertinent testimony at trial is as follows: The state's first witness, Stanley Seligman, M.D., testified that the cause of Kevin Fielding's death was a gunshot wound to the head fired at close range. Two stipulations were next read to the court establishing that a trace metal detection test was performed on the victim, indicating that there had not been any weapon in the victim's hands at the time of death and that the pellets found in the victim's head were consistent with a .38 calibre bullet. Detective Jerome Johnson of the East Cleveland Police Department testified next for the state. Detective Johnson - 2 - stated he was on patrol duty on December 31, 1988, travelling westbound on Euclid Avenue, when he observed a vehicle in the parking lot of a Dairy Mart in an awkward position, backed up against a pole with its reverse lights on. Det. Johnson pulled into the Dairy Mart alongside the car and radioed in for assis- tance. When assistance arrived, Det. Johnson approached the vehicle, opened the driver's side door, and observed a white male in the driver's seat slumped over with blood covering his face, clothing and the driver's seat. Det. Johnson stated the male had no vital signs. The time was approximately 4:35 a.m. Maverick Naylor and Walter Burst both testified they worked at the Dairy Mart in the early morning of December 31, 1988. They stated they had closed around 1:30 a.m. for cleaning. They each testified that around 4:00 to 4:15 a.m., they heard a gun- shot, but neither noticed anything and went back to work. About ten to twenty minutes later, the police arrived and interviewed each witness. Walter Burst further testified that around 4:00 a.m., he saw a light brown car drive through the Dairy Mart parking lot real fast off Euclid Avenue and into Chapman. The next time he saw the victim's brown car, the police had arrived and were interviewing him. Additionally, around 4:15 a.m., prior to the gunshot, Burst let in a known patron, told him they were closed and let him out. Susan M. Beal, a friend of the victim, testified that she, another friend, and the victim went out on the night of December - 3 - 30, 1988. First, they went to an ATM, where the victim withdrew about forty dollars. They then went to a few pubs, where the victim bought drinks, and played some video games. Around 2:30 a.m., they had breakfast at a Bob Evans, where their friend bought breakfast since the victim had run out of money. Ms. Beal testified they dropped her off at home around 3:30 a.m. Tremel Smith, an acquaintance of appellant, testified that in the late hours of December 30, 1988 and early morning hours of December 31, 1988, he, his girlfriend Rita Peak, and appellant were at the house of a man named Johnny getting high on crack cocaine and drunk on beer. After running out of drugs, appellant left, but came back soon after and was in the bathroom with Johnny when they called for Smith. Smith went into the bathroom, where they asked him to ask Rita to turn a trick with a white man at the Dairy Mart so they could buy more drugs. Smith asked Rita, and she eventually agreed. Smith, Rita and appellant then began walking toward the Dairy Mart eastbound on Euclid Avenue. Upon reaching a fish market on the other side of Chapman, appellant walked around the back of the market while Smith and Rita proceeded toward the Dairy Mart. Rita walked toward the car while Smith waited behind her, pretending to talk on an outside telephone in the Dairy Mart parking lot. Rita entered the car on the passenger side, and the victim turned on the ignition. Smith next observed appellant walking away from Euclid Avenue on Chapman while Andre - 4 - King and DeVaughn Jackson exited appellant's car. King and Jackson walked toward the victim's car. King then snatched Rita out of the car and entered it. Rita then walked back toward Smith while Jackson went to the driver's side of the victim's car. Smith next observed Jackson wrestle with the victim's hand. Smith testified Jackson then shot the victim in the head. Jackson and King jumped out of the victim's car and went toward appellant on Chapman while Smith and Rita walked away down Wymore Avenue. Smith and Rita went to a Johnny Green's house (different Johnny than the first one), where they argued. Smith hit Rita because, he testified, she knew what was going on. Appellant, King and Jackson arrived at Green's house approximately five to ten minutes later. Appellant threatened Smith, warning him not to say anything about the murder. Appel- lant, King and Jackson also discussed where to hide the gun. Finally, Smith admitted to various prior felonies and tes- tified that a reduction in charges against him in exchange for his cooperation was the only deal made with the state. Rita Peak was called by the state, but refused to testify even after a court order to do so. The court further granted her transactional and use immunity, but Peak refused to testify. The court then found her to be an unavailable witness pursuant to Evid. R. 804(A)(2). Det. Edward D. Barko, Chief of Police of the East Cleveland Police Department, then testified that State's Exhibit "B" is a written statement given by Rita Peak concerning - 5 - the events of December 30 and 31, 1988. Ms. Peak's statement corroborates much of Tremel Smith's testimony. Lastly, Robert Kalvitz, an East Cleveland Police Officer, testified that he had talked with Tremel Smith on January 3, 1989, and Smith had given him a statement which was inconsistent with his testimony at trial. Kalvitz testified that Smith, who was under investigation for another robbery, stated he had some information on a robbery and murder. It was Smith's prior state- ment, Kalvitz testified, that appellant ran into Smith and Peak on his way to the Dairy Mart in question and that appellant asked if Smith had seen King and Jackson. Smith stated that appellant told him that King and Jackson had borrowed his car and appellant wanted it back. Based on the above evidence, the trial court found appellant guilty of aggravated murder and aggravated robbery. Appellant timely appeals, raising four assignments of error for our review. Appellant's first assignment of error states: THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY THE ADMISSION OF HEARSAY TESTIMONY THAT DID NOT FALL WITHIN THE ESTAB- LISHED HEARSAY EXCEPTION. Appellant contends the admission of Rita Peak's written statement into evidence constitutes prejudicial error. Specifi- cally, appellant argues that while Peak's statement admitted to attempted prostitution, it was made during an investigation of aggravated murder and aggravated robbery and, thus, must be - 6 - viewed as being a statement made in her own interest. Appellant continues by arguing that while Peak's statement admits attempted prostitution, it is a statement made to support a defense against, or refute an element of, aggravated murder and aggra- vated robbery. Therefore, appellant contends Peak's statement is not a statement against interest as contemplated in Evid. R. 804(B)(3). This argument lacks merit. It appears uncontested that Rita Peak was an unavailable witness within the definition of Evid. R. 804(A)(2). Rita Peak appeared in court and took the witness stand, but persisted in refusing to testify concerning the subject matter despite the trial court's order to do so and the transactional and use immu- nity granted her. Her statement was later admitted into evidence as a statement against interest. Evid. R. 804(B)(3) provides: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: *** (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interests, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his posi- tion would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the state- ment. - 7 - Case law makes it clear that, under Evid. R. 804(B)(3), a bare showing of some extent of corroboration is not enough. Instead, the rule contemplates a demonstration of corroborating circumstances (concerning the content of the statement and the conditions under which it was made) which, on balance, persuades the trial judge that the statement bears the clear indicia of reliability and trustworthiness, leaving the ultimate determi- nation of credibility to the jury. State v. Carman (May 24, 1990), Cuyahoga App. No. 56991, unreported, at 2-3, citing State v. Saunders (1984), 23 Ohio App. 3d 69, paragraph 3 of court's syllabus. In the present case, evidence exists demonstrating the existence of corroborating circumstances concerning the content of the statement. The trial court held an evidentiary hearing to determine the trustworthiness of the statement wherein Det. Barko testified that Ms. Peak's statement is substantially similar to the testimony of Tremel Smith at trial. Indeed, a review of Ms. Peak's statement reveals that it substantially corroborates Smith's testimony at trial. Both implicate the parties iden- tified therein in a scheme to commit aggravated robbery which resulted in the death of Kevin Fielding. Appellant essentially argues the circumstances under which the statement was made do not demonstrate a clear indicia of reliability and trustworthiness as required by Evid. R. 804(B)(3). Appellant contends that Peak's statement admitting - 8 - to attempted prostitution does not severely contravene her interests and that there was motivation to misrepresent the facts when her statement is considered in light of an aggravated rob- bery and aggravated murder investigation. However, we find any skepticism surrounding the circumstan- ces under which the statement was made is clearly outweighed by a demonstration of corroborating circumstances concerning the con- tent of the statement. Clearly, Peak's statement tended to sub- ject her to criminal liability for attempted prostitution and drug abuse. Further, Peak's statement is corroborated by Tremel Smith's testimony. Thus, the trial court did not err is admit- ting Peak's statement in evidence. Appellant's first assignment of error is, accordingly, overruled. Appellant's second assignment of error follows: FAILURE OF DEFENSE COUNSEL TO FILE FOR DIS- QUALIFICATION OF PRESIDING JUDGE DUE TO THE FACT THE JUDGE PRESIDED OVER THE TRIAL OF ONE CO-DEFENDANT AND ACCEPTED THE PLEA OF ANOTHER CO-DEFENDANT WHO WAS A WITNESS AT THESE PROCEEDINGS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. Appellant contends his trial counsel's failure to file for disqualification of the trial judge pursuant to R.C. 2701.03 constituted ineffective assistance of counsel for failing to protect appellant's right to an impartial trier of fact. This argument lacks merit. - 9 - In determining whether appellant was denied effective assis- tance of counsel, the test to be applied is whether the accused, under all the circumstances, had a fair trial and whether sub- stantial justice was done. State v. Hester (1976), 45 Ohio St. 2d 71. A two-step process, substantially similar to the two- pronged analysis developed by the U. S. Supreme Court in Strick- land v. Washington (1984), 466 U.S. 668, has developed as fol- lows: First, there must be a determination as to whether there has been a substantial viola- tion of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were vio- lated, there must be a determination as to whether the defense was prejudiced by coun- sel's ineffectiveness. State v. Lytle (1976), 48 Ohio St. 2d 391; see, also, State v. Smith (1985), 17 Ohio St. 3d 98. On the issue of counsel's effectiveness, the appellant has the burden of proof since, in Ohio, a properly licensed attorney is presumed competent. Lytle, supra, at 397. Appellant relies on this court's recent pronouncement in State v. D'Ambrosio (Aug. 30, 1990), Cuyahoga App. No. 57448, unreported, in which it was held that failing to object during trial to a judge who presided over a trial of one co-defendant and the plea of another waived that objection, as authority supporting his proposition that his trial counsel's failure to file for disqualification constitutes ineffective assistance of - 10 - counsel. However, this argument was raised in D'Ambrosio as well wherein this court noted that a mere recital of this propo- sition does not prove ineffective assistance of counsel. Appellant cites to the trial court's recognition of the difficulty in having presided over the jury trial of co-defendant Rita Peak and "having heard both the guilty plea of co-defendant Tremel Smith and the hearing on the motions to suppress and in limine of co-defendant Andre King . . .." However, the court continued, ". . . this Court has striven to segregate those facts proven at this proceeding from the evidence adduced in the prior ones." From the record, there exists no indication that the trial court was unable to segregate the facts of the present case from previous cases involving the same parties. The trial court, in handing down its decision, reiterated the evidence relied upon in reaching its decision. The court pointed to Tremel Smith's testimony, as well as the written statement of Rita Peak. Under all the circumstances, it appears the appellant had a fair trial and substantial justice was done. Appellant's second assignment of error is, therefore, over- ruled. - 11 - Appellant's final two assignments of error raise similar issues of law and fact. They state: THE TRIAL COURT ERRED AND DENIED CHARLES JOHNSON HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CON- STITUTIONS WHEN HE WAS CONVICTED ON EVIDENCE WHICH WAS AS A MATTER OF LAW INSUFFICIENT TO SUPPORT THE CONVICTION. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. Appellant argues both the quantity of the evidence as well as the quality of evidence is insufficient to support the ver- dict. This argument lacks merit. In State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph 2 of court's syllabus, the Ohio Supreme Court recently stated: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evi- dence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evi- dence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) In reviewing both weight and sufficiency of the evidence, the same test is applied. Jenks, supra, at 278. Moreover, the court noted circumstantial evidence and direct evidence inherently possess the same probative value and, therefore, should be sub- jected to the same standard. Jenks, supra, paragraph 1 of court's syllabus. The credibility of testimony and the weight of - 12 - evidence are primarily matters for the trier of fact. The ver- dict will not be disturbed on appeal unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. Id., at 273. The aggravated murder statute (R.C. 2103.01[B]) provides in pertinent part that no person shall purposely cause the death of another while committing or attempting to commit, or while flee- ing immediately after committing or attempting to commit, aggra- vated robbery. The aggravated robbery statute (R.C. 2911.01[A][2]) provides in pertinent part that no person, in attempting or committing a theft offense, or in fleeing after such attempt or offense, shall inflict or attempt to inflict serious physical harm on another. Finally, the complicity sta- tute (R.C. 2923.03) provides in pertinent part that no person, acting with the kind of culpability required for the commission of the offense, shall solicit or procure another to commit the offense or aid and abet another in committing the offense. In the present case, competent, credible evidence exists supporting appellant's conviction for aggravated murder and aggravated robbery. The testimony of Tremel Smith indicates that appellant and a man named Johnny asked Smith to ask his girl- friend to turn a trick with a white man at the Dairy Mart parking lot so they could buy more drugs. Smith then testified to walk- ing toward the Dairy Mart with Rita and appellant. Smith next observed appellant walking up Chapman Avenue while Andre King and - 13 - DeVaughn Jackson exited appellant's car. After the shooting, King and Jackson ran back toward appellant's car while Smith and Peak walked away. Finally, Smith testified that appellant, King and Jackson threatened him not to tell anyone about the murder. Further, Rita Peak's statement corroborated much of Smith's testimony. Therefore, from the record, any rational trier of fact could have found the essential elements of aggravated murder and aggra- vated robbery proven beyond a reasonable doubt. Accordingly, appellant's third and fourth assignments of error are overruled. Judgment affirmed. - 14 - 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 Cuyahoga County Court of Common Pleas 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. ANN McMANAMON, J. CONCURS IN JUDGMENT ONLY (See attached opinion) JAMES D. SWEENEY, J. CONCURS IN JUDGMENT ONLY AND CONCURS WITH CONCURRING OPINION PRESIDING JUDGE FRANCIS E. SWEENEY 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 journaliza- tion, 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. 59820 STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : OPINION : -vs- : : CHARLES V. JOHNSON : : : Defendant-Appellant : DATE: FEBRUARY 6, 1992 ANN McMANAMON, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in judgment only. I would overrule the first assignment of error because the admission of Peak's statement was harmless in light of Tremel Smith's testimony which fully implicated the defendant in the murder. Whether the trial court properly admitted Peak's statement in light of the defendant's inability to cross-examine her is arguable. In State v. Young (1983), 5 Ohio St. 3d 221, the Supreme Court held: "A statement by a co-defendant who is granted a separate trial may not be read into evidence at the trial of the other co-defendant (Evid. R. 804 [B]), when the party against whom it is offered did not have the opportunity and similar motive to develop the testimony by direct, cross, or redirect examination to - 3 - satisfy the right of confrontation." Id. at paragraph one of syllabus. In Young, the court ruled a co-defendant's preliminary hearing testimony to be inadmissible because the defendant did not have any opportunity to cross-examine the co-defendant at the earlier hearing or at trial. I recognize that Evid. R. 804(B)(1), the "former testimony" exception to the hearsay rule, explicitly requires that preliminary hearing testimony satisfy the right to confrontation. Evid. R. 804(B)(3), the statement against interest exception involved in the instant case, contains no such explicit requirement. The Supreme Court, however, in Young did not rely exclusively on the language of Evid. R. 804(B)(1) in reaching its decision. The court cited the United States Supreme Court decision in Bruton v. United States (1968), 391 U.S. 123 which held that an accused's Sixth Amendment right to confrontation is violated when the confession of a co-defendant is admitted at a joint trial if the co-defendant does not testify and subject himself to cross-examination. The Ohio Supreme Court in Young recognized that, to allow the incriminating statement in that case, even though the defendants were tried separately, would eviscerate the holding in Bruton and defeat the defendant's constitutional right to confrontation. In the instant case, Peak and Johnson were co-indicted but tried separately. Peak refused to testify at Johnson's trial so the prosecution introduced her pre-trial statement in which she admitted soliciting the victim and also accused Johnson of - 4 - shooting Fielding. Johnson had no opportunity to cross-examine Peak about this incriminating statement. It is arguable that under Young, supra and Bruton, supra, the trial court should have excluded this evidence. This court, however, need not decide whether the statement was inadmissible in this case since the overwhelming evidence of Johnson's guilt would render harmless any such error. I write, nonetheless, to express my concerns about the constitutional issue raised by the case which should not be disregarded. .