COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60535 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIAM C. SCOTT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-249059. 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: Donald Butler, Esq. 75 Public Square Building Suite 1210 Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant appeals from a conviction rendered by the Cuyahoga County Court of Common Pleas which found appellant guilty of all counts in a three count violation of drug law, R.C. 2925.03, with a prior violence specification. Defendant- appellant assigns five errors for review. This court finding no error, affirms the judgment of the trial court. STATEMENT OF THE FACTS On January 26, 1990, Detective Henry O'Brien of the Cleveland Police Department Narcotics Unit investigated complaints of drug activity at 12720 Irvington Avenue, Cleveland, Ohio. As part of his investigation, Detective O'Brien, with the help of an informant, arranged to make a controlled purchase of cocaine from a male named "Will." The informant arranged the drug purchase by placing a pager call to "Will." "Will" returned the pager call and agreed to sell the informant and Detective O'Brien a half-ounce of powdered cocaine for Five Hundred Fifty Dollars ($550.00), at the location of 12720 Irvington Avenue, Cleveland, Ohio. At 6:45 p.m. that same evening, Detective O'Brien, undercover, went to the Irvington address with the informant. As they walked towards the house, defendant-appellant William Scott walked out of the house and approached them. The three of them went to sit in Detective O'Brien's undercover car. Appellant William Scott told them that "his guy would be there with the stuff." O'Brien asked Scott if he could sell him a half-ounce from his house. Appellant Scott responded that he could not because what he had -3- in the house was "rocked up," meaning that it had been cooked into crack cocaine. At the urging of Detective O'Brien, appellant William Scott left the car and went to call the supplier. O'Brien drove around the block to talk to his backup officers. Upon O'Brien's return to the Irvington address, a Monte Carlo car stopped in front of Detective O'Brien's informant and appellant Scott. The Monte Carlo car had one occupant. Appellant Scott spoke to the occupant. The male from the Monte Carlo told Detective O'Brien to go back to his car. The male accompanied Detective O'Brien to the car. Inside the car, he gave O'Brien a piece of folded notebook paper containing the suspected cocaine. Detective O'Brien then handed the male $550.00 in U.S. currency. The male got out of O'Brien's car and walked to appellant Scott. They had a hand to hand transaction, exchanged a few words and then the male got back into the Monte Carlo and left the area. Detective O'Brien returned to the police station and tested the powder for cocaine. The substance tested positive for 14.28 grams of cocaine. Consequently, Detective O'Brien prepared a search warrant for the Irvington location. The warrant was approved and signed by Judge Lillian Greene and was executed that evening at approximately 11:00 p.m. The search of the premises resulted in the confiscation of suspected cocaine and drug paraphernalia. Appellant Scott was not present at the premises, however, all of the items were found in the basement bedroom -4- along with one identification card and personal papers belonging to appellant Scott. Appellant Scott surrendered to police within three days after the warrant was executed. STATEMENT OF THE CASE Defendant-appellant, William C. Scott, was indicted by the Cuyahoga County Grand Jury on February 21, 1990 in a three count indictment for violations of the drug law, R.C. 2925.03. Count one of the indictment charged appellant with the knowing possession of cocaine in an amount equal to bulk but less than three times bulk. Count two charged that appellant knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution or distributed cocaine, knowing or having reasonable cause to believe that the drug was intended for sale or resale by the offender or another. Count three charged that defendant-appellant knowingly sold or offered to sell cocaine in an amount equal to or exceeding the bulk amount but less than three times the bulk amount. Each count bore a conviction for a prior crime of violence. At appellant Scott's arraignment on March 15, 1990, appellant entered pleas of not guilty to all counts. On June 14, 1990, appellant filed a motion to suppress evidence pursuant to a defective search warrant. A jury trial commenced on August 13, 1990. On August 14, 1990, the court, after hearing evidence on the motion to suppress, overruled the motion. -5- On August 15, 1990, the jury found appellant guilty of all counts of the indictment. Appellant now timely appeals the conviction. ASSIGNMENTS OF ERROR I AND II Appellant's Assignments of Error I and II will be discussed concurrently as they involve common issues of law and fact. I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SINCE THE SWORN AFFIDAVIT WAS BASED UPON FALSE INFORMATION. II. THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL BASED UPON THE COURT ADMITTANCE OF EVIDENCE ARISING FROM THE EXAMINATION OF THE SEARCH WARRANT SINCE THE AFFIANT FAILED TO DEMONSTRATE ADEQUATE PROBABLE CAUSE FOR ISSUING THE WARRANT. Appellant in his first assignment of error argues that his motion to suppress evidence should have been granted by the trial court because the sworn affidavit given to the examining magistrate was based upon false information. Further appellant argues in his second assignment of error that the trial judge should have granted a mistrial because there was not a showing of probable cause on which to issue a search warrant. These assignments of error are not well taken. ISSUE: WHETHER THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE SEARCH WARRANT CONTAINED SUFFICIENT RELIABILITY AND PROBABLE CAUSE TO SUPPORT THE DECISION OF THE MAGISTRATE TO ISSUE THE WARRANT UNDER THE "TOTALITY OF THE CIRCUMSTANCES" In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, -6- given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates [1983], 462 U.S. 213, 238-239, followed.) In reviewing the sufficiency of probable cause in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after- the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. (Illinois v. Gates [1983], 462 U.S. 213, followed.) State v. George (1989), 45 Ohio St. 3d 325, syllabus, paragraphs 1 and 2. Applying the review standard enunciated in Illinois v. Gates, supra, the reviewing court is limited to the determination whether the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Appellant Scott argues within that the trial court erred by not permitting Detective O'Brien to give testimony regarding the -7- information contained in the affidavit and search warrant. Appellant contends that there were blatant errors and false statements made by Detective O'Brien in the affidavit. Specifically, appellant relates evidence concerning the specificity of the house address and location stated in the affidavit. Appellant bases this argument on the fact that the warrant identified the house address with a scratched out house number and described the house as having "the numerals 127 and 5 affixed to front of the house," when the correct address was 12720. Appellant suggests that the reliability and veracity of the affidavit fails because of this. Appellant Scott further contends that the informant relied upon by Detective O'Brien was not reliable and that O'Brien did not clarify the basis for relying on the unknown informant. On review, the court is not persuaded by appellant's argument. Illinois v. Gates, supra, requires the court to apply a totality of the circumstances analysis in addressing the magistrate's original probable cause determination but carefully limits the role of a reviewing court to that of simply "*** ensuring that the magistrate had a 'substantial basis for *** concluding' that probable cause existed. ***" Gates, at 238- 239. It is also important to note that the totality-of-the-circumstances analysis of Gates not only addresses the original probable cause determination of the magistrate but carefully limits the role of a reviewing court as well to that of simply "*** ensur[ing] that the magistrate had a -8- 'substantial basis for *** concluding' that probable cause existed. ***" Id. at 238- 239. In this regard, we find the following language especially pertinent to the case before us: *** [W]e have repeatedly said that after- the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' Spinelli, supra, at 419. ***" Gates, supra, at 236. "We also have said that '[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,' United States v. Ventresca, 380 U.S. 102, 109 (1965). ***" Gates, supra, at 237 fn. 10. See, also, Massachusetts v. Upton, supra, at 733. From the foregoing language, it is clear that reviewing courts may not substitute their own judgment for that of the issuing magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which the reviewing court would issue the search warrant. On the contrary, reviewing courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. Gates, supra, at 237, fn. 10. It is equally important to note that, in this context, "reviewing court" clearly includes a trial court conducting a suppression hearing as well as the appellate courts, insofar as we are all conducting the same "after-the- fact scrutiny" of the sufficiency of the affidavit. State v. George, supra, at 329, 330. -9- Thus, under the totality of the circumstances analysis of Gates, the question is whether Detective O'Brien's affidavit provided a substantial basis for Judge Lillian Greene's conclusion that there was a fair probability that cocaine and related paraphernalia would be found at the Irvington Avenue address. "*** [I]t is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" Spinelli v. United States (1969), 393 U.S. 410. Considering the Gates guidelines, we find that Judge Greene's conclusion that there was a fair probability that cocaine would be found at the address described in the affidavit was a proper conclusion. Detective O'Brien testified at the suppression hearing that he sought a search warrant only after certain incidents had occurred. O'Brien testified that his informant made a phone call to a "Will" to set up a drug buy on Irvington Avenue. O'Brien stated that he and the informant approached 12720 Irvington, that a man by the name of Will exited the house and stated that he had called his man and he would bring the weight over. The detective wrote in the affidavit that when he asked Will if he could buy what he had in the house, Will stated that he had just "rocked up" all that he had in the house. The affidavit further stated that when the man arrived, he sold the affiant Detective O'Brien the suspected cocaine, then exchanged something with the man named Will and left. The cocaine purchase tested positive for cocaine. Detective O'Brien -10- stated in the affidavit that the informant was reliable and had led him to eight other narcotic arrests. These are the facts Judge Greene examined on the face of the affidavit. We hold that in view of the totality of the circumstances, Judge Greene properly found probable cause to issue a warrant to search the Irvington address as the evidence submitted by affiant Detective O'Brien was sufficient on its face for the trial judge to find a fair probability that cocaine or related paraphernalia would be found at the residence of appellant Scott. We reiterate that this court only has to find a substantial basis for Judge Greene's conclusion that there was a fair probability that cocaine or related paraphernalia would be found in the Irvington residence. Grates, supra, at 235, State v. George, supra, at 332. Accord State v. Mills (1992), 62 Ohio St. 3d 357 (appellate courts should accord great deference to the magistrate's judgment); State v. Pettis (1991), Cuyahoga App. No. 59174, unreported (reliability of informant). Accordingly, Assignment of Error I is overruled since a totality of the circumstances analysis does not show that the sworn affidavit was based upon false information. Further, Assignment of Error II is overruled as the trial court did not err in denying appellant's motion for mistrial as there was sufficient probable cause to issue a search warrant. ASSIGNMENTS OF ERROR III AND IV -11- Appellant's Assignments of Error III and IV will be discussed concurrently as both assignments of error involve common issues of law and fact. III. APPELLANT HAS BEEN DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY THE STATE'S REFUSAL TO TIMELY COMPLY WITH DEFENDANT'S DEMAND FOR DISCOVERY OF A TAPE AND DISCOVERY OF THE IDENTITY OF THE INFORMANT. IV. BY WITHHOLDING DISCOVERABLE EVIDENCE THE STATE DENIED APPELLANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEEDED (SIC) UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION. Appellant argues in his third assignment of error that his due process right to a fair trial was impaired by the state's refusal to timely comply with discovery. Specifically, appellant argues that the state did not timely submit a tape for review nor reveal the identity of the police informant. Appellant argues in his fourth assignment of error that by withholding the above evidence the state denied him the effective assistance of counsel. These assignments of error are not well taken. ISSUE: WHETHER APPELLANT CAN SHOW PREJUDICE BY THE UNTIMELY DISCOVERY OF THE RECORDED TELEPHONE CONVERSATION Appellant contends that he was prejudiced by the state's untimely presentation of the tape recording of the planned drug purchase during trial. Defense counsel had requested the production of the tape during discovery, but alleged that the -12- prosecutor told defense counsel that the tape was inaudible and therefore would not be used at trial. Consequently, defense counsel contends that appellant was surprised by the introduction of the tape at trial and therefore was not able to prepare an adequate defense in regards to whether or not the voice on the tape was that of appellant Scott. Testimony as to a telephone call is admissible where there is a reasonable showing, through testimony or other evidence, that the witness placed or received a call as alleged, plus some indication of the identity of the person spoken to. State v. Vrona (1988), 47 Ohio App. 3d 145. The record indicates that in the case sub judice the court properly admitted the tape into evidence. When defense counsel motioned the court to grant a mistrial pursuant to the tape's untimely discovery, the court did not grant the mistrial, reasoning that the defense counsel heard the tape because the trial judge ordered that the tape be played before the judge and all counsel after which the judge determined to admit that evidence. The court also asked defense counsel how the untimely discovery of the tape affected his preparation, and defense counsel responded that "he could have maybe engaged in some meaningful settlement discussions with the state." We, therefore, find that defense was not prejudiced by the admission of the tape recorded transaction. To bolster this finding, we suggest that defense counsel could have requested a -13- continuance after learning that the tape was audible. At that time the defense counsel could have further investigated the taped voice to determine whether the voice was indeed that of appellant Scott. The record indicates too that there was other evidence and testimony that gave some indication that the voice on the tape was indeed that of appellant Scott. The fact that the informant talked to someone named "Will" on the pager; that "Will" subsequently met Detective O'Brien and the informant at the Irvington address as planned in the staged call; that this "Will" told O'Brien and the informant that his guy would be by with the weight; that a man in a Monte Carlo arrived with the cocaine and accepted the agreed upon amount from Detective O'Brien; that the detective saw an exchange between the man and Will; that a later drug search at the Irvington address uncovered cocaine and drug paraphernalia is all overwhelming other evidence that supports the contention that the voice on the pager and the voice on the tape was the same voice, that of appellant William Scott. Accordingly, Assignment of Error III is not well taken. ISSUE: WHETHER APPELLANT CAN SHOW INEFFECTIVE ASSISTANCE OF COUNSEL Appellant contends that the withheld discoverable evidence denied his right to effective assistance of counsel. Appellant Scott argues that in the absence of information derived from the tape, and without the identification of the informant and without the information regarding an exculpatory statement allegedly made -14- by appellant's brother, defense counsel was not able to prepare an adequate defense. On review, the court is not persuaded. 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. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. 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. 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 -15- 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. (Emphasis added.) In the within case, the court determined in its discussion of Assignment of Error III that appellant Scott did not show prejudice as a result of the aforementioned alleged errors. Therefore, applying the Bradley standard to the alleged ineffective assistance of counsel, we find that it ipso facto results in the failure of the claim. The inability of appellant Scott to demonstrate the prejudicial effect of defense counsel's alleged deficient conduct compels the court to overrule Assignment of Error IV. ASSIGNMENT OF ERROR V THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS FOR ACQUITTAL, THEREBY DENYING HIM DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. Appellant argues in his fifth assignment of error that the trial court erred in denying his motion for acquittal. Specifically, appellant argues that the state presented insufficient evidence to support the three drug convictions. This assignment of error is not well taken. The trial court properly overruled the defendant's motions for acquittal under Crim. R. 29. State v. Bridgeman (1978), 56 Ohio St. 261, provides that the test for whether a Rule 29 motion for -16- judgment of acquittal should be entered is whether reasonable minds can reach different conclusions as to whether each material element of the crime has been proved beyond a reasonable doubt. The evidence must be construed in the light most favorable to the state. In the within case, the record indicates that reasonable minds could reach different conclusions as to whether each material element of the crime had been proved beyond a reasonable doubt. The motion, therefore, was properly denied and the matter was properly submitted to a jury. State v. Wolfe (1988), 51 Ohio App. 3d 215. The evidence clearly established that appellant Scott was involved in the sale of the cocaine, even though he personally did not make the drug sale to Detective O'Brien. Someone by the name of "Will" set up the buy for O'Brien and the informant. Upon arriving at the designated spot, Detective O'Brien and the informant saw "Will," later known to be appellant Scott, come out of 12720 Irvington Avenue. "Will" made incriminating statements to the detective such as "my guy will be here with the stuff," and that he had "rocked" up everything in his house. The controlled buy did occur and Detective O'Brien observed a hand to hand transaction between appellant Scott and the man who had sold O'Brien the cocaine. The execution of the warrant at the 12720 Irvington residence uncovered cocaine and drug paraphernalia. The court finds that the above evidence presented was such that reasonable minds could reach different conclusions as to whether -17- each material element of the crime had been proved beyond a reasonable doubt. Accordingly, the trial court properly denied appellant's motion for acquittal. Accordingly, Assignment of Error V is overruled. Accordingly, the trial court is affirmed. -18- 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. NAHRA, J. and HARPER, J., CONCUR. 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. .