COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60055 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : EDWARD TOWNSEND : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-246020. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Edward H. Kraus Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Hyman Friedman County Public Defender Donald Green Assistant Public Defender The Marion Building 1276 West Third Street, #307 Cleveland, Ohio 44113-1569 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Edward Townsend ("Townsend") appeals from his jury trial conviction of one count of robbery [R.C. 2911.02] with a stipulated prior aggravated felony specification (robbery). For the reasons adduced below, we affirm. A review of the record reveals that the robbery occurred at approximately 11:30 p.m. on the evening of August 8, 1989, at the Sisters Chicken restaurant outlet located at the intersection of East 55th Street and Superior Avenue in the City of Cleveland. At that point and time, the restaurant manager, Joseph Hopkins ("Hopkins"), testified that he and two employees, Marlon Crumedy ("Crumedy") and Thomas Burrell ("Burrell"), left the safety of the restaurant's interior to take the trash to a dedicated area for same at the rear of the parking lot. The parking lot was illuminated at the time. The restaurant closed at 11:00 p.m. Hopkins further testified that there was a car in the rear lot with three to four people. A man allegedly walked up to one of the two employees and attempted to punch him. At that point, Hopkins stated that two more men came up. Hopkins was struck from behind as he turned to tell the two employees to go back inside. Hopkins fell to the ground where he was repeatedly punched and kicked by two assailants. One of the assailants searched Hopkins' pockets and took his wallet and keys. The - 3 - assailants then left in a blue car. Hopkins noted the license plate. The two employees fled toward the McDonald's restaurant across the street following the initial punch. Crumedy testified that he turned around in the driveway of Sisters Chicken as he ran toward McDonald's and saw Hopkins being beaten. At Mcdonald's, Crumedy telephoned the police. Cleveland police patrolman Timothy Kilbane ("Kilbane") testified that he responded to the robbery call over the police radio. At the Sisters Chicken restaurant, Kilbane spoke with Hopkins, Crumedy and Burrell, and was provided a description of the assailants vehicle and the license plate number. Kilbane then departed to search for the suspect vehicle. On White Avenue, a couple of blocks from the sisters Chicken restaurant where the crime occurred, Kilbane spotted the parked suspect vehicle with two men standing beside the automobile and one man inside the car. Kilbane radioed this find to the station, stopped the three men, and secured the men and the car. A short while later, another police patrol car driven by officer Timothy Richardson, brought Hopkins, Crumedy and Burrell to the area of the parked suspect vehicle. At that time a cold stand was conducted in the glare of the patrol car lights. Hopkins testified that he identified Townsend and John Prescott ("Prescott") at the cold stand, but was unsure of the third man, Robert Allen ("Allen"). Crumedy, at the cold stand, also - 4 - identified Townsend and Prescott. Hopkins, Crumedy and Kilbane identified Townsend in the courtroom. Kilbane also stated that a blue ATM bank card belonging to Hopkins was found on the ground beside the suspect vehicle. Hopkins' wallet was not found. Prescott, testifying on behalf of the State, stated that Townsend and Allen drove over to his house in Townsend's car and suggested they go to McDonald's. The trio missed the entrance to McDonald's and went into the parking lot of Sisters Chicken to turn around. Prescott alleged that Townsend, after seeing a couple of his male friends in the parking lot, stopped the car and, accompanied by Allen, exited the car to talk to them. Prescott followed after a few minutes. Prescott then saw the two male friends reach out their hands to shake the hand of Townsend. As they did so, Townsend struck Hopkins and Allen struck at one of the other men. Prescott stated that he witnessed Townsend kick and punch a man on the ground, and Allen take the wallet from the man on the ground's pocket. Prescott further testified that he was arrested five to six minutes after the attack in front of Townsend's home on White Avenue. Prescott also stated that Allen had given the ATM card to Prescott prior to the arrival of the police, but that he immediately threw the card to the ground, wanting no part of it. Prescott also denied ever striking anyone in the robbery, but admitted to having plead guilty to robbery in connection with this offense and was given probation. - 5 - The final witness on behalf of the State, Cleveland Detective Bernard Ross ("Ross"), stated that he first met the suspects during their booking at the Fifth District station on August 9, 1989. Ross testified that the suspects refused to make any written statements. The defense objection to this testimony was sustained. The court found that the objectionable testimony was non-responsive to the question posed by the prosecutor, denied defendant's motion for a mistrial, and gave a curative instruction to the jury. Ross also testified that he remembered Townsend having some cash on his person at the booking, and Prescott had no cash at the booking. The State rested its case and the defense moved, unsuccessfully, for acquittal pursuant to Crim. R. 29. The defense then presented its case consisting of five witnesses. The first defense witness was Betty Townsend ("Betty"), the sister of the defendant who lived with him at 4605 White Avenue. Betty stated that she did not make a statement to the police, but that she was with the defendant at home that night. She could not remember the exact date of the arrest but stated that it occurred on October 10, 1989. Betty testified that: (1) she had sent Prescott to a store to get her some soda pop; (2) Prescott used the defendant's car to go to the store; (3) before Prescott left, the defendant went next door to talk with Kevin Neil, his neighbor, for five to ten minutes; (4) defendant and Allen came - 6 - back into the house, then Prescott returned from the store; (5) the three men left around 11:00 p.m. for ten to fifteen minutes and returned; (6) she did not know where the men went during this 1 absence; (7) the police arrived two to three minutes later ; (8) she did not see the men get into the car or drive it away. The second defense witness was Herlene Brown ("Brown"), the girlfriend of the defendant and mother of defendant's one year old child. Brown stated that she saw the defendant at home that night but could not recall at what time. Brown reiterated the allegation that the defendant was at the neighbor's house when Prescott left for the store in defendant's car. She stated that defendant and Allen came into the house and then Prescott returned from the store. The three men then left the house allegedly to take Allen home and the police arrived about five minutes later. Brown claimed to have heard people at the cold stand talking about pointing to Prescott. She also claimed to have seen Hopkins at the cold stand say that: he did not recognize Townsend; and, Allen was not involved in the robbery. Brown testified that she only saw two people in civilian clothes get out of the patrol car at the cold stand. Brown admitted to never having given a statement of her testimony to the police. The third defense witness was Lewis Brodnik ("Brodnik"), an Assistant County Prosecutor in Cuyahoga County. Brodnik, who was 1 Betty also testified that the police arrived five to ten minutes later, as well as, ten to fifteen minutes after Prescott returned. (R. 177, 180, 185-6, 188-9.) - 7 - once assigned to work on this case, testified that during a pre- trial he telephoned Hopkins who stated that he was unsure about the involvement of Allen in the offense, and possibly unsure of more of the suspects. The fourth defense witness was Robert Tobik ("Tobik"), who was in the Cuyahoga County Public Defender's Office and assigned to the defense of Townsend at the time of the pre-trial mentioned above with Brodnik. Tobik never spoke with Hopkins and reiterated the testimony of Brodnik, that Brodnik was told by the manager that the manager was unsure of defendant's identification. Tobik also recalled that the manager totally excluded Allen's involvement in the offense. The fifth and final defense witness was Allen, who has known defendant since childhood. Allen stated that he was riding around on the night of the offense and arrived at defendant's house, being arrested ten minutes later. Allen did not see Prescott or defendant's car when he arrived at the Townsend home. Allen testified that Prescott did arrive with some soda pop for defendant's sister. The three men then left, ostensibly to give 2 Allen a ride home using defendant's car. Allen stated that he was in the defendant's car, and Prescott and the defendant were about to enter the car, when the police arrived. Allen also testified that one of the men at the cold stand said that he, 2 It is not explained what became of the car which brought Allen to the Townsend home. - 8 - Allen, was not involved and that the man was unsure about Townsend's involvement. The other two men at the cold stand, according to Allen, said nothing. Allen also denied any knowledge of the stolen wallet or the ATM card. The witness, on cross-examination: (1) admitted to a conviction on February 27, 1990, of one count of attempted grand theft (auto) and one count of possession of criminal tools; (2) said he was not charged with the Sisters Chicken offense; (3) could not recall the exact time he went over to Townsend's home. The defense then rested its case and, unsuccessfully, renewed its motion for acquittal. Following the charge to the jury, the finder of fact returned a verdict of guilty. This appeal followed raising three assignments of error. Assignments one and two will be discussed jointly. I EDWARD TOWNSEND'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF ROBBERY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. II EDWARD TOWNSEND WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review to be applied to these assignments of error was stated in State v. Thomas, et al. (September 20, - 9 - 1990), Cuyahoga App. Nos. 57311 and 57327, unreported, at p. 4, as follows: In this assignment of error, appellants argue insufficiency of the evidence and manifest weight of the evidence. The test for sufficiency of the evidence is stated in State v. Martin (1983), 20 Ohio App. 3 172, at paragraph two of the syllabus, as: *** whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. See also, State v. Bridgeman (1978), 55 Ohio St. 2d 261; State v. Harriston (Cuyahoga, 1989), 63 Ohio App. 3d 58; State v. Davis - 10 - (1988), 49 Ohio App. 3d 109; State v. Berkesch (November 14, 1991), Cuyahoga App. No. 59324, unreported, at 6; State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported; and Crim. R. 29(A). Townsend also raises an argument dealt with in State v. Berkesch, supra, at 7, as follows: Appellant also relies on eight factors enunciated in State v. Mattison (Cuyahoga, 1985), 23 Ohio App. 3d 10, in support of his assignment based on manifest weight of the evidence. The Mattison decision and the eight factors were discussed recently by this court in State v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** the eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the - 11 - Mattison court in the syllabus. These factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 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. Reviewing the evidence under the guidelines referenced above, we find that Townsend's conviction was in accord with the manifest weight of the evidence and that the evidence presented to the jury was sufficient as a matter of law. Assignments overruled. III THE STATE'S USE OF EDWARD TOWNSEND'S POST- ARREST SILENCE WAS IN VIOLATION OF EDWARD TOWNSEND'S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The testimony and subsequent court action relative to this assignment are during the direct examination of Ross by the prosecution: Q Did you investigate a robbery that occurred at Sister's Chicken on August 8, 1989? A That's correct. - 12 - Q And when did you get this investigation, if you can recall? A I got the investigation at approximately 1:00 a.m. on the 9th, some two hours after the robbery. Q Okay. Can you tell the jury what you did during the course of your investigation? A I met with the arresting officers of the Fifth District during the booking procedures. They are booked at the fifth District at which time the suspects were interviewed. The three males that were arrested all refused to make written statements -- MR. STANLEY: Objection. THE COURT: Approach the bench. (Thereupon, a discussion was had between the Court and counsel off the record at the bench, after which the following further proceedings were had in open court:) THE COURT: Sustained. The jury will disregard it. Approach the bench again. (Emphasis added.) (R. 153-154.) The defense then, out of the hearing of the jury, argued unsuccessfully for a mistrial. The court reconvened on the record with the jury present and then gave this curative instruction: THE COURT: Ladies and gentlemen, the testimony yesterday as concerning the defendant not giving a statement to the police is to be used only by you in that he exercised, and was well within his Constitutional rights to do so, and for no other reason could that testimony or should that testimony be considered by you. - 13 - He exercised his Constitutional right not to make a statement and you are to draw no other inferences by the testimony that you heard yesterday. The Constitution provides, among other things, to anyone accused of a crime certain basic rights, one of which is no one can be compelled to testify against themself and you all have heard about the 5th Amendment. It's well within anyone's right to exercise those Constitutional rights to refuse to make a statement at any time. In fact, it would be sound legal advice given by many lawyers that a statement not be given, so you are not to consider what you heard yesterday for any other purpose. You may draw no inference on the comment about the three individuals refusing to give a statement. They are well within their rights in doing that. You may proceed. MR. KRAUS: We'll call Detective Ross. He's still under oath. (R. 169-170.) It is not contested by the parties that the State, in attempting to prove its case, may not comment on an accused's post-arrest custodial silence. See State v. Williams (Cuyahoga, 1979), 64 Ohio App. 2d 271, 275-277, 18 Ohio Op. 3d 262, 265- 266. Accordingly, the court properly sustained the defense objection to the answer by witness Ross which commented on the arrestees' refusal to give written statements to the police. The question remains, however, whether this short comment, which may have been inadvertent and certainly unresponsive to the question posed by the prosecutor, prevented Townsend from receiving a fair trial. We find that it did not prevent a fair trial and was - 14 - therefore harmless error. The court took quick, decisive action to limit any damage caused by the objectionable comment by directing the jury to disregard the comment and by giving the jury a comprehensive curative instruction. No other testimony or argument was propounded on post-arrest custodial silence. The remaining evidence was sufficient upon which to base a conviction. Assignment overruled. Judgment affirmed. - 15 - 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. JOHN T. PATTON, P.J., and AUGUST PRYATEL, J.*, CONCUR. JAMES D. SWEENEY JUDGE (*SITTING BY ASSIGNMENT: August Pryatel, Retired Judge of Court of Appeals of Ohio, Eighth Appellate District.) 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. .