COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59850 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION DAVID S. McKENZIE : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 246502 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Harvey H. Starkoff Cuyahoga County Prosecutor 27600 Chagrin Boulevard By: Richard J. Bombik Suite #360 Assistant Prosecuting Attorney Cleveland, Ohio 44122 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: David McKenzie timely appeals his conviction for murder (R.C. 2903.02), with a firearm specification. He raises four assignments of error./1\ Since the record does not support defendant's arguments, we affirm. McKenzie's conviction arises from the shooting death of Lorenzo Hawk. Bedford Heights police discovered Hawk, who had been shot five times, sitting in his auto on Frontage Road on the morning of November 1, 1989. Hawk was hospitalized but died from his wounds twenty-eight days later. Cuyahoga County Deputy Coroner Kakil Jiraki's autopsy of Hawk revealed that one bullet entered the right side of the victim's head and lodged in his brain; two bullets entered the right side of his chest, one hit his right shoulder and a fifth bullet grazed his back. Bedford Heights Police Officer Jerry Bascombe told the jury that, at approximately 12:05 a.m. on November 1, 1989, he observed a black Chevrolet at the side of Frontage Road. When the officer stopped, a black man approached the police car and explained his auto had run out of gas. The man stated a friend was coming to assist him. Officer Bascombe drove away after calling in the Chevrolet's license plate number -- 733 TIP. About /1\ See Appendix. - 2 - three hours later, Police Officer Schultz saw a red Oldsmobile with its trunk open parked in the same area along Frontage Road. Schultz observed a man sitting in the front seat of the vehicle with his head back as if sleeping. Believing the Oldsmobile was the same vehicle Officer Bascombe reported earlier in the evening, Officer Schultz did not stop. Charles Holloway, a friend of Hawk's, testified he was on the way home from dropping his daughter at school on the morning of November 1, when he noticed Hawk's Oldsmobile along the side of Frontage Road. Holloway stopped and opened the passenger door of Hawk's car. After observing Hawk covered with blood, Holloway left to telephone the police. Bedford Heights Police Officer Craig Sirna responded to Holloway's call at 8:19 a.m. The officer found Hawk slumped in the driver's seat. In response to the officer's queries, Hawk indicated "nothing" was wrong. Sirna summoned an ambulance and then photographed shoe prints and tire prints near the Oldsmobile. Officer Dale Richnafsky took soil samples from the area around the victim's auto. Paramedic Mark Gehri testified Hawk denied being shot and claimed he hit his head on the windshield. At the hospital, Hawk told Officer Richnasfky that he did not know who injured him but that a black man, whom he did not know had been with him in the car. Hawk also indicated to another officer that he had picked up a hitchhiker that evening. - 3 - Police determined that the Chevrolet vehicle previously observed by Officer Bascombe belonged to Nichelle Ford, the defendant's girlfriend. At Ford's house, police confiscated a pair of the defendant's tennis shoes and some Mobilnet phone bills. The Chevrolet was impounded and soil samples taken from the vehicle. On November 2, 1989, Bedford Heights police officers interviewed the defendant, who admitted seeing Hawk on E. 131 Street and Edgewood between 11:00 and 11:30 p.m. on October 31, but who denied being in Bedford Heights at all that night. A tape recording of the defendant's interview discloses the following exchange: "Q. Did you meet with Hawk later after you saw him the first time? "A. No. "Q. How do you explain the fact that an officer and others saw your car parked in the City of Bedford Heights? "A. I don't understand it. I don't even go in Bedford. "Q. Well, on a street maybe you didn't know where you were. "A. Believe me, you know when you're in Bedford. "Q. Were you ever confronted by an officer on the road? "A. No. "Q. But were driving the black Chevy? "A. Yes." Christopher Fielder, a geologist with the F.B.I., compared soil samples taken from the floor of Ford's auto with the soil - 4 - near Hawk's Oldsmobile and determined that the samples were consistent. Sharon Allen, a latent fingerprint examiner with the Ohio Bureau of Criminal Identification and Investigation (OBCII), opined that latent fingerprints from the rear passenger door of Hawk's car matched the defendant's left middle and ring fingers. Jeffrey James Lynn of the OBCII told the jury that a plaster cast of a footprint taken from the ground near Hawk's auto matched the tread design of defendant's left tennis shoe. Denisa, Tisha and April McCalla testified they were at Hawk's Bedford Heights apartment on the evening of October 31, 1989. At approximately 11:30 p.m., Hawk received a telephone call. Hawk told the McCallas that a friend named David had run out of gas and was just around the corner. Hawk left his apartment alone at 11:45 p.m. carrying a J.C. Penny shopping bag and a plastic jug, stating he would be back in fifteen minutes. The McCallas waited an hour and, when Hawk did not return, they left. Sharon Bell, Hawk's sister, told the jury the victim was a cocaine dealer and, on at least four occasions, she observed the defendant and her brother involved in drug transactions. According to Bell, Hawk provided the defendant money in exchange for the defendant's cocaine. Bell averred she kept money in two bank safe deposit boxes for her brother, and, on October 26, 1989, she took $138,000 from the boxes and gave the money to her brother. That same evening Bell's house was broken into, but her brother determined nothing was missing. Bell stated she observed - 5 - the defendant check envelopes of money in the attic after the break-in. At that time, Bell gave Hawk a J.C. Penny bag in which to keep the envelopes. The following day she warned her brother about getting involved in such expensive drug deals and expressed concern he was being set-up. Bell also testified that the defendant was the only other person who knew she had withdrawn the money from the safe deposit boxes. On November 1, 1989, after learning her brother had been shot, Bell went to his apartment to look for the money, to no avail. Denise Phelps, an employee of USA Mobile Communications, testified that Hawk owned a pager which was assigned the number 574-0945. Gail Wellford, a GTE Mobilnet employee, identified the mobile car phone records of Nichelle Ford. These records demonstrate that, at 11:53 p.m. October 31, 1989, a call was placed from Ford's mobile phone to Hawk's pager and at 11:55 p.m. Ford's car phone received a call. At 11:59 p.m. a second call was placed to the pager followed by calls to Detroit at 12:01 a.m. and 12:07 a.m., the latter call lasting 4 1/2 minutes; and a call to defendant's sister's house at 12:12 a.m. The mobile phone received a call at 12:13 a.m. which lasted 1 1/2 minutes. The mobile phone was not used again until 12:25 a.m. when a series of outgoing and incoming calls were placed. Between 12:50 a.m. and 12:52 a.m., five calls were placed to Hawk's pager from Ford's car phone; two of these calls were "dropped" i.e. disconnected. Wellford opined the calls were unsuccessful because Ford's vehicle was moving. - 6 - Ophelia Giles, the defendant's mother, testified on her son's behalf. Giles averred she spoke with her son on the telephone at midnight, October 31, 1989, and that he was at his sister's house at that time. Nichelle Ford also told the jury that she and the defendant were visiting his sister on the evening of October 31. According to Ford, the defendant left in her auto for approximately forty-five minutes during the evening to visit his brother and returned by 11:45 p.m. At that time, Ford and the defendant's sister purportedly drove Ford's auto to the grocery store while the defendant remained at his sister's house. Ford testified she returned shortly thereafter and then the defendant drove her auto to their residence. Ford drove separately in another vehicle. She claimed they arrived home between 12:45 a.m. and 1:00 a.m., and spent the remainder of the evening there. On cross-examination, Ford admitted she told police the defendant left his sister's house to look for his brother between 11:00 p.m. and 11:30 p.m. In this statement, Ford also failed to mention her 11:45 p.m. trip to the grocery store. Finally, Ford was unable to explain to the jury the calls from her car phone that night or how the police came to see her auto on Frontage Road at 12:05 a.m., November 1. The defendant testified he went to his sister's house at 7:30 p.m., October 31 and left there between 10:30 and 11:00 p.m. in Ford's auto to look for his brother. According to the defendant's trial testimony, the car ran out of gas on Frontage - 7 - Road near Hawk's apartment in Bedford Heights. The defendant paged Hawk twice for assistance and, while waiting for Hawk to arrive, he made other phone calls. During this time, the Bedford Heights police officer stopped to inquire about his situation. Hawk arrived shortly after the 12:13 a.m. incoming call to Ford's car phone. The defendant testified he approached Hawk's car and was about to get into the passenger side when he noticed a tall black man sitting in the passenger seat. For that reason, the defendant stated he just put the gas in his auto and drove away, leaving Hawk and his passenger on Frontage Road. The defendant then returned to his sister's house to meet Ford. According to the defendant, he eventually went to Ford's house at 1:00 a.m. where he spent the rest of the evening. The defendant admitted he made his living delivering cocaine. In his first assignment of error, McKenzie asserts the court improperly limited his cross-examination of Dr. Kakil Jiraki, the deputy coroner. During his examination of Dr. Jiraki, defense counsel asked whether the witness had an opinion as to the time Hawk was shot. The coroner explained that because of Hawk's hospitalization-- the victim spent twenty-eight days in the hospital -- he could not determine the time of the shooting. Counsel then asked whether the medical report furnished by the hospital for the - 8 - autopsy indicated the time of the shooting. The trial court sustained the state's objection to this query. The medical report states Hawk was shot at 5:30 a.m., November 1, 1989. The defendant argues this evidence contradicts the state's theory that he shot Hawk shortly after midnight and the court should have permitted cross-examination on the contents of the medical report. It is well established that the scope of cross-examination is left to the discretion of the trial court and, absent a clear showing of an abuse of discretion, this court will not disturb the ruling. State v. Acre (1983), 6 Ohio St. 3d. 140, 145. An abuse of discretion connotes an unreasonable, arbitrary or unconscionable decision. State v. Adams (1980), 62 Ohio St. 2d 151, 157. The record demonstrates the coroner offered no opinion as to the time Hawk was shot; nor did he rely on that portion of the medical report in explaining his autopsy findings. Thus, the court did not err in limiting cross-examination as to the time of the shooting as set forth in the report. Furthermore, as will be discussed in the second assignment of error, the statement in the medical report concerning the time of shooting constitutes hearsay and was inadmissible. Accordingly, this assignment of error is overruled. - 9 - In the second assignment, McKenzie asserts the court erroneously excluded portions of Hawk's medical records. The defense called Linda Smith, the custodian of medical records for Metro Health Medical Center, to identify the medical records of Lorenzo Hawk, including the reports of Drs. Kenneth Rosenfeld and Jon Morris. These reports contained statements that Hawk "*** sustained multiple gunshot wounds at approximately 5:30 a.m. ***" on November 1, 1989. When the defense sought the admission of the records pursuant to Evid. R. 803(6), the state objected to the statements concerning the time of the shooting. The court sustained the objection and ordered this portion of the medical report deleted. Evid. R. 803(6) sets forth the business records exception to the hearsay rule and provides: "(6) Records of regularily conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." Under this rule, records of "*** readily observable facts or conditions kept in the regular course of business ***" are admissible because of the "ordinary trustworthiness associated - 10 - with such records ***." Mastran v. Urichich (1988), 37 Ohio St. 3d 44, 48. We again note that the decision to admit evidence under this rule rests within the sound discretion of the trial court. Cleveland v. Huff (1984), 14 Ohio App. 3d 207, 212. Nothing in the medical records indicates the source of the physicians' information concerning the time of the shooting. Clearly the doctors were not present at the shooting and the statements in their reports could not have been a result of their observations. Assuming, arguendo, the victim related this information, such hearsay evidence is not admissible pursuant to Evid. R. 803(6). See Mastran, supra, (patient's narration of events leading to his hospitalization and "having no reference to his medical *** treatment" held inadmissible hearsay). Thus, we find the court did not abuse its discretion in excluding this evidence. Accordingly, this assignment of error is overruled. In his third assignment of error, McKenzie contends the court should have granted a mistrial on the ground that the state failed to disclose exculpatory evidence. The defendant claims the state had the victim's medical records in its possession before trial and that the prosecution should have disclosed these records, specifically the statements that Hawk was shot at 5:30 a.m., pursuant to the defendant's - 11 - Crim. R. 16 discovery requests. McKenzie argues evidence that Hawk was shot at 5:30 a.m., November 1, 1989, was exculpatory and the failure to disclose this evidence violated his constitutional right to a fair trial. In Brady v. Maryland (1963), 373 U.S. 83, the Supreme Court held: "*** the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Such evidence is deemed material only if there is a reasonable probability that had the evidence been disclosed the outcome of the trial would have been different. United States v. Bagley (1984), 473 U.S. 667, 682. See, also, State v. Johnson (1988), 39 Ohio St. 3d 48, paragraph five of syllabus; State v. Eubank (1987), 38 Ohio App. 3d 141. As we previously noted, the statements in the medical report concerning the time of the shooting constitute inadmissible hearsay. Furthermore, it is arguable whether the reports would have otherwise assisted the defendant in the preparation of his case. Nothing in the reports indicates that a reliable source furnished the information to the physicians. Finally, the state introduced evidence that Hawk was shot sometime before 3:15 a.m. At that time, a Bedford Heights police officer observed a black man sitting in the driver's seat of the Oldsmobile with his head back as if sleeping. The trunk of the Oldsmobile was open. Officer Sirna found Hawk, with five gunshot - 12 - wounds at 8:00 a.m in his Oldsmobile with the trunk open. In light of this evidence, we find it unlikely that disclosure of the medical reports would have resulted in a different outcome at trial. Accordingly, this assignment of error is overruled. In his fourth assignment of error Mckenzie challenges the sufficiency of the evidence supporting his murder conviction. When reviewing the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. Further, the assessment of witness credibility lies primarily with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The state presented evidence that Hawk left his apartment to assist McKenzie at approximately 11:45 p.m., October 31, 1989. The two men knew each other from previous drug transactions. Hawk told the McCallas he would be back in fifteen minutes but, when they left one hour later, Hawk had not returned. Although initially denying that he was in Bedford at all, the defendant later admitted Hawk brought him gas there sometime after - 13 - midnight. Physical evidence at the crime scene indicates McKenzie met with Hawk at this location, where police observed the victim's Oldsmobile at 3:15 a.m. and later found Hawk, mortally wounded. The prosecution also introduced evidence that the defendant was aware Hawk had $138,000 from his sister's safe deposit boxes in his possession. The record contains evidence Hawk left his apartment with a J. C. Penny bag which his sister had given him for this money. Police found neither the bag nor the money at the crime scene. Finally, we reject the defendant's argument that the "other" man or "hitchhiker" shot Hawk. Although Hawk made statements to police about the presence of another man with him in his car, we note the coroner testified the victim's thinking would have been impaired by his head wound. Furthermore, the jury reasonably could have concluded Hawk deliberately misled police with these statements. Viewing the evidence in a light most favorable to the state, we find sufficient evidence to sustain the conviction. This assignment of error is overruled and the judgment of the trial court is affirmed. 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 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. BLACKMON, J., AND KRUPANSKY, J., CONCURS. PRESIDING JUDGE ANN McMANAMON 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. - 15 - APPENDIX Appellant's assignments of error are: I "The trial court erred to the substantial prejudice of defendant-appellant by denying defendant-appellant's federal and state constitutional rights to confrontation during defense counsel's cross-examination of the deputy coroner." II "The trial court erred to the substantial prejudice of defendant-appellant by excluding from the medical records the observations of Dr. Jon B. Morris and Dr. Kenneth Rosenfeld that the victim had been shot at 5:30 a.m. on November 1, 1989." III "The prosecutor was guilty of misconduct which substantially prejudiced the defendant-appellant by failing to disclose exculpatory evidence to defense counsel prior to trial and the trial court erred in refusing to grant appellant's counsel's motion for a mistrial based upon the said prosecutorial misconduct." IV "The conviction herein is not supported by sufficient evidence, and the trial court should have granted Appellant's Rule 29 motion for acquittal at the conclusion of the state's case as well as at the conclusion of the trial." .