COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60596 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ROSS SUMLIN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-250559B. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Michael J. O'Shea Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Gail R. Oettinger, Esq. 614 Superior Avenue, N.W. 1440 Rockefeller Building Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Ross Sumlin appeals his conviction on two counts of felonious assault in violation of R.C. 2903.11. Each count had both a firearm specification and a violence specification. After a trial by jury, appellant was sentenced to two consecutive terms of incarceration of five to twenty-five years; with two additional consecutive three-year terms of incarceration for the firearm specifications. At trial the State presented the testimony of both victims, Alexander Jefferson and William Jordan. Mr. Jefferson testified that on March 9, 1990, as he left Burger King in the company of William Jordan and Isaac Ramsey, three cars full of people pulled up near him on East 93rd Street. Lorenzo Younger and appellant alighted from one of the vehicles. Appellant went into the trunk, retrieved a gun and fired two shots. Jefferson stated that appellant's first shot at him was blank, and the second missed. Appellant then handed the gun to Younger, who shot William Jordan in the leg below the kneecap. Jefferson ran behind the SKD Lounge. When he believed it to be safe, he went into the SKD Lounge where he saw Jordan on the floor. After the arrival of the police, he guided them to where Younger could be found. Jefferson testified that he had known appellant for five or six years. The testimony of William Jordan corroborated that of Jefferson in most regards. Both men also testified that earlier - 3 - in the evening there was an incident, or confrontation, between themselves, Ramsey, Younger and appellant. At the time of the shooting, Mr. Henry Taylor, Jr., manager of the SKD Lounge, was present at the bar. He testified that he allowed Mr. Jordan into the bar because he had been injured, but kept everyone else outside. Mr. Taylor identified appellant as one of the people who chased Mr. Jordan to the bar. Officer Gregory Cook of the Cleveland Police Department arrived after the incident occurred. He testified that neither a gun nor any spent bullets were recovered. Officer Rich Sheppard testified that Alexander Jefferson directed him to 2242 East 73rd Street where he then arrested Mr. Younger. Appellant took the stand on his own behalf, and testified that he and his sister, Wendy, took his nephew to a cousin's home and then stopped to see Lorenzo Younger's sister. The only people appellant saw were Lorenzo, a friend of Lorenzo's and the sister. Appellant stated that he was not present during any argument between Younger, Jefferson and Jordan. When Lorenzo requested a lift to Burger King for his friend and himself, appellant agreed. At the Burger King, appellant and his sister purchased food at the drive-through window and then departed. Appellant testified that he was not present at the shooting and that he does not, and never has, owned a gun. Appellant also testified that after the first day of trial he saw Lorenzo Younger for the first time since March 9, 1990. - 4 - Mr. Younger got into the car with appellant, his sister, his sister's friend, Tracy Williams, and his younger brother. Mr. Younger then wrote two notes on paper that was present in the car. The appellant's sister, Wendy Sumlin, testified that she and appellant left home together to take her son to her cousin's house. Upon leaving the cousin, they proceeded to the home of Lorenzo Younger so that she could speak to Mr. Younger's sister. Ms. Sumlin stated that a friend of Lorenzo's was also present, but no one else; and that Lorenzo asked if he could have a ride to Burger King. When they arrived at Burger King, Lorenzo and his friend got out in the parking lot and she and Ross went through the drive through and then returned home. Ms. Sumlin testified that after the first day of trial while she was in a car with appellant, Tracy Williams and her brother, Henry; she saw Younger. He entered the car and she observed him writing on paper. She identified the defense exhibits as being those papers. Ms. Tracy Williams took the stand and stated that she was driving the car and stopped when she saw Mr. Younger. She testified that she saw him writing, and identified defense exhibits C and D. Appellant's exhibits C and D read as follows: Dear Mr. Judge Im writing you to tell you Mr Ross Sumlin did not have any thing to do with William getting shot he just dropped me off at burger King and i was walking home when - 5 - William, ike, Spud walked up on me and William punched me in the face and spud snatched my bag of food so i went on home and called my friend to bring me a gun so he came and left so i sat on my front porch and they walked passed and came in my driveway trying to jump me so i chased them out of my yard with the gun down to SKD lounge and started shooting at them and i shot William and ran to 73rd and Central where i was arrested 30 minutes later Sign Manky B.K.A Lorenzo Younger Dear Society I know I did wrong by shooting Will so im going to shoot myself Sign Manky B.K.A. Lorenzo Younger The trial judge refused to admit these exhibits into evidence as an exception to the hearsay rule. Although the judge first stated that the declarant had refused to testify (T. 153), he later held that he was an available witness. (T. 218). Appellant's first assignment of error. I THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS IN DENYING THE ADMISSION OF THE EXCULPATORY EVIDENCE OF THE LETTER WRITTEN BY THE CO-DEFENDANT PROFFERED BY THE DEFENDANT- APPELLANT AT THIS TRIAL ON THE GROUNDS THAT - 6 - IT WAS HEARSAY EVEN THOUGH THERE WAS CORROBORATING EVIDENCE TO THE TRUTH OF THE PROFFERED EVIDENCE. Appellant asserts that the trial judge committed reversible error by refusing to admit the out-of-court written statements of the co-defendant, Mr. Younger. Although these statements are clearly hearsay, appellant contends they are admissible as an exception to the hearsay rule as the declarant was unavailable and made a statement against his penal interest. We agree. The definition of an unavailable witness is set forth in Evid. R. 804(A). A co-defendant who exercises his right to refuse to testify based on the privilege against self- incrimination meets this definition. State v. Landrum (1990), 53 Ohio St. 3d 107. As Mr. Younger took the stand and exercised his privilege, he was an unavailable witness. The next step is to determine if the statements written by Mr. Younger were against his interest. Evid. R. 804(B) states as follows: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, 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 position 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 statement. - 7 - In his written statement to the judge, Mr. Younger not only exculpates the appellant, but also states that he shot William. This statement was so totally contrary to his penal interest, that one must conclude that a reasonable person in his position would not have made the statement unless he believed it to be true. Mr. Younger wrote his statements after having absented himself from the judicial process for months. Appellant and he were close friends, and there is no evidence of undue pressure exerted upon Mr. Younger to exculpate the appellant, nor is there any evidence of any ulterior motive. Mr. Younger did not pen his statements and then flee. Rather, he turned himself in by arriving at court with the appellant for the second day of trial. His very arrival at court and his subsequent willingness to subject himself to the judicial process both strongly indicate the trustworthiness of his written statements. In addition, Mr. Younger indicated in his second statement that he knew he "done wrong" in shooting William, and wanted to shoot himself. At trial, appellant testified that Mr. Younger was crying when telephoning his parents from the court. (T. 151-152). Mr. Younger's obvious distress also is indicative of the trustworthiness of his statements. The Supreme Court in Landrum, supra, cited to Green v. Georgia (1979), 442 U.S. 95 and held: In Green v. Georgia (1979), 442 U.S. 95, the Supreme Court, on due process grounds, - 8 - reversed a death sentence because the trial court excluded an accomplice's confession that he rather than the defendant had pulled the trigger. Green cited Chambers, affirming that "'the hearsay rule may not be applied mechanistically to defeat the ends of justice.'" Green, supra, at 97. In order to adopt the United States Supreme Court's prohibition on mechanistically applying the rules of evidence, the written statements of the co-defendant should have been admitted into evidence for the jury's consideration. Appellant's first assignment of error is well taken. Appellant's second assignment of error. II THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF FELONIOUS ASSAULT WITH A GUN AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THERE WAS SUFFICIENT CONFLICTING TESTIMONY TO CREATE A REASONABLE DOUBT SO THAT THE EVIDENCE SUPPORTING THIS CONVICTION IS INSUFFICIENT AS A MATTER OF LAW. In State v. Martin (1983), 20 Ohio App. 3 172, at syllabus 3, the court stated: 3. In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the - 9 - exceptional case in which the evidence weighs heavily against the conviction. And, as recently stated by this court in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, the test for determining manifest weight was set forth in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported. The Thompson and Malone decision held: 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. In the case sub judice, the jury heard testimony from both victims who identified appellant as the perpetrator of the crimes. In addition, the jury heard the testimony of Mr. Henry Taylor, an independent witness, who did not previously know the appellant, but identified him as being present at the time of the incident. - 10 - Based on this testimony, there was substantial, competent and credible evidence to support the conviction. Appellant's second assignment of error is overruled. Judgment reversed and remanded. - 11 - This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., CONCURS; SARA J. HARPER, J., DISSENTS, WITH DISSENTING OPINION ATTACHED. JAMES D. SWEENEY JUDGE 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60596 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION ROSS SUMLIN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 HARPER, J., DISSENTING: I respectfully dissent from the majority opinion. I have considerable difficulty in subscribing to the majority's attempt to enlarge the exception to the hearsay rule. The Ohio Supreme Court in State v. Lundrum (1990), 53 Ohio St. 3d 107, held that the decision on whether to admit an out-of-court statement against interest is within the sound discretion of the trial court. Appellate review, therefore, of the trial court's denial of an out-of-court statement should be solely based on whether - 3 - the trial court's abuse of discretion resulted in a violation of an accused's right to a fair trial. Appellant eloquently and correctly stated the considerations that should be made when determining the reliability of an out- of-court statement as enunciated by the United States Supreme Court in Chambers v. Mississippi (1973), 410 U.S. 284. (1) The statements were made spontaneously shortly after the incident; (2) other evidence corroborated the statements; (3) the statements were self-incriminatory and unquestionably against interest, and (4) the declarant was available for cross- examination. "The hearsay rule, which has long been recognized and respected by virtually every state, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact". (Emphasis added.) Chambers at 299. Thus, the thrust of the admission of an out-of-court statement is its trustworthiness and not merely that it is against interest. In the case sub judice, the Chambers test was not met. The statements were not made spontaneously but were purportedly written by the declarant several months after his arrest and after appellant, his friend and sister found him, and he wrote the statements in appellant's car. There was no reliable evidence to corroborate the statements other than the self- serving statements of appellant, his sister and his friend. The declarant, by pleading the Fifth Amendment right to self- - 3 - incrimination, was not available for cross-examination. See State v. Lundrum, supra. The statement is questionably against interest seeing that the statement added nothing to Mr. Younger's guilty plea to the charges against him. The second statement addressed to society which purports to indicate a writing by a person about to commit suicide adds nothing to the reliability of the note. A suicide note addressed to society tends to show society's possible connection to the individual's act, this letter shows nothing and there is no evidence that Mr. Younger contemplated suicide or attempted one. Evid. R. 804(B) states as follows: "(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, 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 position 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 statement." (Emphasis added.) The corroborating circumstances surrounding Mr. Younger's writing of the so-called confession against interest compels me to conclude that the letter lacks the reliability and trustworthiness essential to the admissibility of an out-of- court statement. This court in State v. Riggins (1986), 35 Ohio App. 3d 1, held that the proponent for the admission of an out-of-court - 4 - statement must show that corroborating circumstances indicate the trustworthiness of the statements. See also State v. Saunders (1984), 23 Ohio App. 3d 1 69. The circumstances of the case sub judice do not affirmatively show the trustworthiness of the statements. The declarant who pleaded guilty to the charges against him has no reason to plead the Fifth Amendment if he stands behind the statements. Moreover, the victims positively identified both defendants as the individuals that shot at them. There is, therefore, no convincing evidence to show that the letter would have exonerated appellant or helped him in any way, given the overwhelming evidence of his guilt. I am inclined to opine that appellant's conviction was not tainted and his right to fair trial was not in any way violated. The trial court's judgment therefore should be affirmed. .