COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59987 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ERIC M. MILLER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-245076 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WESLEY A. DUMAS, SR., ESQ. Cuyahoga County Prosecutor 1800 Superior Building TIMOTHY J. McGINTY, ESQ. 815 Superior Avenue, N.E. Assistant Prosecuting Attorney Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Eric Miller, a.k.a. Marvin Miller, was indicted on October 16, 1989, by the Cuyahoga County Grand Jury on one count of aggravated murder, in violation of R.C. 2903.01; one count of attempted murder, in violation of R.C. 2923.02; and one count of having a weapon while under disability, in violation of R.C. 2923.13. All counts had gun and aggravated felony specifications. Appellant was found guilty by the jury on May 18, 1990 of murder, attempted murder, and having a weapon while under disability, with all specifications. The trial court sentenced appellant to a term of fifteen years to life in jail on the murder charge plus three years of actual mandatory incarceration for the gun specification; a term of fifteen to twenty years, fifteen years of which are actual mandatory incarceration on the attempted murder charge, and a term of three years to five years in jail on having a weapon while under disability. Appellant's sentence was to be served consecutively. Appellant appeals as of right and for the reasons that follow, we affirm. II. Marshall Smith testified that on October 5, 1989, he was watching a baseball playoff game with Charles Calloway and his brother David Smith at David's house. At about 10:30 p.m., they decided to walk down the street to Mr. Calloway's house. - 3 - They were confronted by Mr. Miller who was walking across the street on East 123rd Street, Cleveland, Ohio. Mr. Marshall Smith testified that Mr. Miller asked them if they were "straight" which in street jargon means, "Do you want drugs, cocaine, whatever". They responded, "Yeah, we are straight. Are "You don't look straight." Mr. Marshall Smith stated that after his brother's remark, Mr. Miller stated "I'll show you straight." "I'll show you straight?" Mr. Marshall Smith, who knew Eric Miller before that night, immediately after Mr. Miller uttered his last words of "I'll show you straight", responded, "Oh that's my buddy, Eric". Mr. Miller then pulled out a shotgun and shot David Smith. Mr. Miller shot at Mr. Calloway also. Mr. Marshall Smith testified that he immediately went to his brother's aid. He looked up and it appeared as if Mr. Miller was loading his gun. He started running up the street, and heard Mr. Miller shouting "Come back my nigger, come back" as he chased after him. Mr. Marshall Smith testified that he knew Mr. Miller because they attended high school together. He recognized him that night because he was standing directly under the street light approximately 36 feet away. He gave the police a description of Mr. Miller. Mr. Marshall Smith identified Mr. Miller in court as the man who shot David Smith. Charles Calloway testified that he was with David and Marshall Smith on October 16, 1989. They drank beer that night. - 4 - All three men were walking towards his house when a "guy" walking across on 123rd asked them if they were "straight". They said "yea we straight". "Is you straight?" Mr. Calloway continued "[David] said 'he don't look straight to me.'" "The guy said 'I'm going to show you I'm straight." He pulled a sawed-off shotgun and shot David Smith. Mr. Calloway hit the ground. When he looked up he saw the man chasing Marshall Smith. He described the man to the police. Immediately after the shooting, Charles Calloway and Marshall Smith provided written statements to the police that were found to be consistent with their in-court testimony. Detective Patricia Doherty, of the Cleveland Police Department, testified that she responded to the area of 1048 East 123rd Street, Cleveland, Ohio, after a radio message about a shooting at 11:00 p.m. on October 6, 1989. Detective Doherty testified that she talked to Marshall Smith at the crime scene and he said to her "It was Eric Miller. I went to school with him. I have known him for six years." Marshall Smith gave Detective Doherty the same description Mr. Calloway gave the police when he was questioned. Dawn Morris testified that Eric Miller is her boyfriend. She stated that Mr. Miller lived with her and was always at home with her watching television. He stated that Mr. Miller did not receive his mail at her address. She testified that Mr. Miller carried a beeper so that she could get hold of him in case there was a problem with their child. She admitted on cross- - 5 - examination that she did not have a telephone at her house where he can call her in case of emergency. She admitted talking to Detective Moore, of the Cleveland Homicide Unit, but failed to tell him that Mr. Miller was with her at the time of the shooting, stating, "Why should I have." She denied ever seeing Mr. Miller with a mobile phone. Marlon Lawrence testified that he is Mr. Miller's best friend. He stated that he was drunk on the night of the murder but saw Mr. Miller on the west side at a party at the time of the shooting. He admitted that Mr. Miller had a mobile phone early in 1989. He did not know that Mr. Miller carried a beeper. Mr. Lawrence was celebrating his birthday on October 5, 1989 at the home of Eric and his girl friend, Dawn, on the west side of Cleveland. He admitted on cross-examination that all of the alibi witnesses got together and coordinated their alibi testimony. Sharline Miller testified that she is Eric Miller's mother. She stated that she was with Eric every day. She testified on cross-examination that she was not with him on the night of the murder. She testified that Eric was ill on the night of the murder and was taken to the hospital the next morning. Felicia Davis testified that she is an accounting student at Dyke College. She did not know Eric Miller prior to October 5, 1989 when she met him at a birthday party. She came to the party with her boyfriend, Jonas Allen, who also testified that they - 6 - were with Eric from 8:00 p.m. until 12:00 midnight on the night in question. Detective Bill Cunningham of the Cleveland Police Homicide Unit testified that he spoke with Mr. Miller's family members before and after his arrest. No one mentioned to him about being with Mr. Miller at the time of the murder. Detective Cunningham testified that Mr. Miller's mother, Sharline, told him nothing about being with him on the night of the murder. Detective Moore of the Cleveland Police Homicide Unit testified that he talked with Mr. Miller's father, and his girl friend, Dawn Morris. He stated that he explained to them about the charges against Eric, including where and when the incident took place. They discussed Eric's bond as well. At no time did any one of them indicate that they were with Eric that night. III. Appellant's sole proposition of law is as follows: "DEFENDANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AND PLAIN ERROR BY THE LOWER COURT FOR THE OMISSION OF THE JURY INSTRUCTION OF THE ALIBI DEFENSE." Appellant, in his sole proposition of law, argues he was denied effective assistance of counsel by his trial counsel's failure to request a jury charge on defense of alibi or object to the trial court's failure to so charge. Appellant further argues that his trial counsel's failure to object should be characterized as plain error because it resulted in substantial prejudice to his case. - 7 - Since the merit of appellant's proposition of law is determinative on our finding of plain error, we shall first address that issue. Crim. R. 30 states in pertinent part as follows: "A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection." It is a well settled law in Ohio that a party cannot assign as error, on appeal, the trial court's failure to give any instructions, without first objecting before the jury retires to deliberate its verdict, and states specifically what he objects to, and the grounds for the objection. State v. Lane (1976), 49 Ohio St. 2d 77; State v. Williams (1977), 51 Ohio St. 2d 112; State v. Lockett (1976), 49 Ohio St. 2d 48; State v. Roberts (1976), 48 Ohio St. 2d 221. Appellant's failure to object to the trial court's failure to instruct on his alibi defense could constitute a waiver unless such omission was plain error or appellant had a statutory right to the instruction. Crim. R. 52(B) provides, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In State v. Long (1978), 53 Ohio St. 2d 91, the Ohio Supreme Court held that: "Ordinarily, the failure to timely object to a jury instruction violative of RC 2901.05(A) constitutes a waiver of any claim of error relative thereto. Crim R 30. A jury instruction violative of RC 2901.05(A) does not constitute a plain error or defect under Crim R 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. Notice of plain error under Crim R 52(B) is - 8 - to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." R.C. 2945.11 states: "In charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict * * *." Therefore, R.C. 2945.11 requires that the trial court give complete jury instructions on all issues raised by the evidence and a criminal defendant has a statutory right to expect such instruction even when the demand is not made. See State v. Williford (1990), 49 Ohio St. 3d 247; see also State v. Procter (1977), 51 Ohio App. 2d 151 (where the court held that it is prejudicial error for the trial court to omit the defense of duress in its instruction to the jury, where it is properly supported by the evidence). A defendant's entitlement to a jury instruction on defense of alibi must begin with him. By that we mean that the defendant must first present evidence that at the time of the crime in question, he was elsewhere. See State v. Viola (1947), 51 Ohio 1/ Law Abs. In State v. Payne (1957), 104 Ohio App. 410, the court held that: "'Unless there is some evidence, perhaps even a scintilla establishing or tending to establish an alibi, there is no duty on the part of the court to charge on the question. * * * "'Here there simply is no testimony on the question of Payne's whereabouts at the time the crime was committed. 1/ Cert. denied by Ohio Supreme Court for want of constitutional question, 148 Ohio St. 712; cert. also denied by the United States Supreme Court, 334 U.S. 816. - 9 - "'As a result, the charge need not have been given at all, and could not be said to have misled the jury, for the reason that there was no evidence on the subject.' Id., at 416, 417 [of Ohio App., at 90 of O.O.2d]." See also State v. Ferguson (Dec. 7, 1987), Cuyahoga App. No. 53029, unreported. In the within case, appellant presented evidence that he was elsewhere at the time of the murder of David Smith. Appellant relied entirely on his alibi defense for his vindication. The trial court, pursuant to R.C. 2945.11, was required to instruct the jury on appellant's alibi defense, and its failure to so instruct was an error. In State v. Bridgeman (1977), 51 Ohio App. 2d 105, this court held in the fourth syllabus that: "Where the accused has seasonably filed a notice of alibi, presented testimony at trial in its support, and relies on alibi as his sole defense, the trial court's failure to instruct on the defense of alibi does not comply with its duty to instruct on 'all matters of law necessary for the information of the jury in giving its verdict' as provided by R.C. 2945.11, and this omission may be noticed as plain error affecting the substantial rights of the accused, notwithstanding defense counsel's failure to request an instruction on alibi as provided by Crim. R. 30." In State v. Mitchell (1989), 60 Ohio App. 3d 106, this court again held that: "* * * though a failure to instruct a jury on the defense of alibi is error even if not requested, it is plain error only if the instruction would have altered the outcome of the case or if its omission caused a manifest miscarriage of justice. State v. Sims (1982), 3 Ohio App. 3d 331, 3 OBR 385, 445 N.E. 2d 245, paragraph two of the syllabus. "The Sims court reasoned that: "'* * * A trial court's instructions to the jury on alibi are little more than a reminder that evidence - 10 - of alibi was introduced. * * * [I]f the defendant is found, beyond a reasonable doubt, to have committed the crime, then the jury necessarily must have considered and disbelieved the evidence of alibi.' Id. at 335, 3 OBR at 390, 445 N.E.2d at 250. "This court has since followed the Sims reasoning to hold that, where the record supports a finding of guilt beyond a reasonable doubt and the appellant cannot show that the result would have been different had the jury been instructed on the defense of alibi, the failure to instruct is not reversible error. State v. Griffin (Aug. 25, 1988), Cuyahoga App. No. 54238, unreported; State v. Wylie (Oct. 25, 1984), Cuyahoga App. No. 48012, unreported." Therefore, in light of this court's holding in Bridgeman, supra, and subsequent cases, we hold that a trial court's failure to instruct the jury on the defense of alibi, where there is evidence to support such, is error but not per se, plain error. It becomes plain error if a review of the record shows that the totality of the evidence presented shows that had the instruc- tion been given, the outcome of the case would have been different or the failure resulted in a miscarriage of justice. In the within case we do not find as did appellant that the trial court's failure to instruct the jury on his defense of alibi constituted a plain error. The record shows that Marshall Smith, the victim's brother, has known appellant since their days in high school. Marshall Smith identified appellant as the person who shot and killed his brother. Marshall Smith told the police on the night of the shooting that appellant was the culprit by giving them his name and his description long before he was arrested. Mr. Calloway, who was also present during the shooting, gave the police appellant's description, and - 11 - corroborated Marshall's testimony. Appellant was standing under a street light at approximately 30 feet from Marshall and Mr. Calloway. Marlon Lawrence, appellant's best friend and one of his alibi witnesses, testified on cross-examination that all the alibi witnesses got together and coordinated their alibi testimony. Appellant's girl friend, who claimed to live with him and who was also with him at the time of the alleged shooting, testified that she did not tell the police this important information when she was questioned by the police because "Why should I have." Detectives Moore and Cunningham testified on rebuttal that they spoke with appellant's relatives, including his parents and girl friend, who were his alibi witnesses, and none saw fit to inform them that appellant could not have done the shooting because he was with them. A careful review of the totality of the evidence presented in the within case compels us to hold that though the trial court erred by not instructing the jury on appellant's defense of alibi, such instruction, if given, would not have altered the outcome of this case, and no miscarriage of justice is manifest. IV. A jury instruction by the trial court on defense of alibi is a statutory right of a defendant and must be given when there is evidence to support such instruction. A trial counsel's failure to object to a trial court's omission of such instruction does not amount to ineffective assistance of counsel. The obligation - 12 - to give the instruction is upon the court, regardless of whether or not trial counsel raised the issue. Appellant has failed to show that his trial counsel's performance was deficient. See Strikland v. Washington (1984), 466 U.S. 688; State v. Smith (1985), 17 Ohio St. 3d 98; see also State v. Hamblin (1988), 37 Ohio St. 3d 153; State v. Williams (1988), 38 Ohio St. 3d 346. Appellant's sole proposition of law is overruled. Judgment affirmed. - 13 - 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. JAMES D. SWEENEY, P.J., and PRYATEL*, J., CONCUR. SARA J. HARPER JUDGE *Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment. 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. .