COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60817 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DARRYL J. SMITH : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-254,890 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor WINSTON GRAYS, Assistant MICHAEL P. MALONEY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: STEPHEN WALKER Attorney at Law The Brownell Building 1340 Sumner Court Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, J.: Defendant-appellant Darryl J. Smith, timely appeals his con- viction for aggravated murder (R.C. 2903.01). For the reasons set forth below, we affirm the judgment of the trial court. The pertinent testimony adduced at trial is as follows: Leon Grimes, a witness for the state, testified that on July 3, 1990, at approximately 2:30 or 2:45 a.m., he heard a commotion outside of his residence. He heard an argument between the appellant and the victim concerning the appellant's girlfriend and co-defendant, Inger Riley. Mr. Grimes looked out his door and saw the victim being taken into the apartment building next door. The appellant ordered the co-defendant to get the appel- lant's gun and load it and bring it to him. The appellant told the victim, "I'm going to kill you." The co-defendant retrieved the gun and gave it to appellant. The victim came out of the apartment asking who hit him. The appellant replied that he did. The victim proceeded toward the appellant and, when he got about five feet away, the appellant shot him in the front once and then at least four times in the back after the victim fell down. The appellant was heard saying, "Die, [m.f.], die." The appellant then left the area, proceeding through an alley toward his house. - 2 - Lemark Taylor, another state witness and a friend of the appellant, also testified that he heard an argument between the appellant and the victim concerning advances made by the victim toward the appellant's girlfriend. While walking down the street, Mr. Taylor heard a gunshot and turned around and saw the fire coming out of a gun. He heard the appellant state, "Die, [m.f.], die." He did not see who was holding the gun when the shots were fired. Alice Danzler testified that she heard an argument outside her window and a voice say, "Do you want to know who hit you? I did." Ms. Danzler then heard shots and a voice say, "Die, [m.f.], die." Ms. Danzler looked out her window and observed a man on the ground and the appellant standing over the body with a shotgun. Tina Marie James testified for the state that the victim, her ex-boyfriend, came to her house on July 3, 1990 and she observed that he had been in a fight. The victim went outside to find out who hit him. Ms. James watched the victim walk down the street. The victim approached the appellant and asked the appellant who hit him. The appellant asked the victim if he wanted to fight. As the victim approached the appellant, the appellant shot him. The appellant shot the victim about four times more after he fell to the ground. Dr. P. S. Sreenivasa Murthy, a Deputy Coroner with the Cuya- hoga County Coroner's Office, testified that he examined the vic- - 3 - tim's body on July 3, 1990. The cause of death was determined to be a homicide resulting from five shotgun wounds to the trunk of the body and the extremities. Dr. Murthy testified that without the same weapon and ammunition to test fire at various distances, it would be difficult to determine how far the muzzle of the gun was from the victim when it was fired. Assuming the weapon used was an unaltered shotgun, the shot to the front of the abdomen was between eight to ten feet and the four wounds to the back were at a distance of twelve to sixteen feet. Letha Shepherd, the appellant's mother, testified for the defense that the appellant and co-defendant were home from 1:30 to 3:00 a.m. on the morning of July 3, 1990. The appellant testified that on July 2, 1990, he left home at 8:00 p.m. and returned home between 12:00 midnight and 12:30 a.m. He lived with his mother and father at 879 Ansel Road, Cleveland. The co-defendant and the appellant's mother were already at the house. The appellant made deviled eggs and went to bed until the following morning. He denied killing the victim, Timothy Welch, but admitted that he knew about an inci- dent where the victim asked the co-defendant about having sex with the victim. The appellant denied ever confronting the victim about this incident. Based upon the above testimony, the jury found appellant guilty of aggravated murder (R.C. 2903.01). Appellant now timely appeals, raising eight assignments of error for our review. - 4 - ASSIGNMENT OF ERROR I THE REFUSAL OF THE PROSECUTION TO PROVIDE TO THE APPELLANT RECORDS IN ITS POSSESSION, WHICH APPELLANT IS ENTITLED TO BY LAW, AND THE REFU-SAL OF THE TRIAL COURT TO SECURE SUCH RECORDS FOR THE APPELLANT DENIES AN ACCUSED DUE PROCESS OF LAW AND THE EFFECTIVE ASSISTANCE OF COUNSEL. Appellant argues that the trial court erred in denying his motion to compel discovery of police department reports made in the investigation in violation of the public records statute, R.C. 149.43. This argument is without merit. The Ohio Supreme Court has held that a defendant in a crimi- nal trial may not obtain public records under R.C. 149.43 when he has another adequate legal remedy under Crim. R. 16. State, ex rel. Shane, v. New Philadelphia Police Dept. (1990), 56 Ohio St. 3d 36, 37 (citing State, ex rel. Scanlon, v. Deters [1989], 45 Ohio St. 3d 376). In the present case, we find that appellant was provided with an adequate alternative remedy to his R.C. 149.43 request through the trial court's in camera inspection of the witnesses' statements pursuant to Crim. R. 16(B)(1)(g). As a result of the in camera inspections, the trial court allowed defense counsel to use the witness statements during his cross-examinations of Leon Grimes and LeMark Taylor. Furthermore, defense counsel cross- examined Detec-tive Cunningham regarding the substance of all - 5 - notes and witness statements taken during the course of the criminal investigation and also cross-examined the identification witnesses as to whether they made prior statements to the police. Accordingly, since appellant had an adequate alternative remedy at law, we cannot find that appellant was prejudiced by the trial court's overruling of appellant's request to examine and seal the file. Assignment of Error I is overruled. ASSIGNMENT OF ERROR II THE FAILURE TO PROVIDE DISCOVERABLE MATERIAL TO THE DEFENSE DENIED THE ACCUSED DUE PROCESS OF LAW AND THE EFFECTIVE ASSISTANCE OF COUN- SEL. Appellant contends the trial court erred in denying discov- ery of witnesses' statements and in denying the introduction of the victim's arrest record at the trial. Appellant also contends he was denied an examination of scientific and physical evidence obtained during the investigation. These arguments are without merit. Crim. R. 16(B)(1)(g) provides for an in camera inspection of a witness's statement after that witness has testified on direct examination. Notes made by a police officer during an interview with a witness are not subject to an in camera inspection within the meaning of Crim. R. 16(B)(1)(g). State v. Cummings (1985), 23 Ohio App. 3d 40. - 6 - In the present case, the appellant contends the trial court erred in denying his requests for notes and summaries of the police officers' interviews with witnesses. Since these notes and sum-maries are not the subject of inspection under Crim. R. 16(B)(1)(g), we find the trial court did not err in denying the appellant's request for discovery of these statements. Appellant also contends the trial court erred in denying the introduction at trial of the victim's arrest record as character evidence to show that other persons had a motive to hurt the vic- tim. Evidence of a victim's character is admissible where self- defense is asserted by the accused. Evid. R. 404(A)(2). Since the appellant did not allege self-defense, the trial court did not err in denying appellant's request to introduce the arrest record as evidence at trial. Finally, appellant contends the trial court erred in denying the disclosure of scientific tests performed on shotgun shells and pellets. However, a review of the record reflects that no tests were performed on the shells or pellets. Therefore, this argument is without merit. Accordingly, Assignment of Error II is overruled. - 7 - ASSIGNMENT OF ERROR III IN A PROSECUTION FOR AGGRAVATED MURDER, THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON MURDER AND VOLUNTARY MANSLAUGHTER AS INFERIOR DEGREES OF THE CHARGED OFFENSE, WHERE SUCH INFERIOR DEGREES ARE SUPPORTED BY THE EVIDENCE, CONSTITUTES REVERSIBLE ERROR. ASSIGNMENT OF ERROR IV DUE PROCESS IS DENIED AN ACCUSED WHERE THE JUDGE REFUSES TO INSTRUCT THE JURY AS TO RE- QUESTED JURY INSTRUCTIONS WHICH CORRECTLY STATE THE LAW, REPRESENT THE THEORY OF DE- FENSE AND WERE SUPPORTED BY THE EVIDENCE. In Assignments of Error III and IV, the appellant similarly argues that the trial court erred in refusing to instruct the jury on the lesser included offense of voluntary manslaughter (R.C. 2903.03). This argument is without merit. A defendant is entitled to an instruction on an inferior degree of the indicted offense when the evidence is such that a jury could both reasonably acquit him of the indicted offense and convict him of the inferior offense. State v. Deem (1988), 40 Ohio St. 3d 205, 211. A defendant is not entitled to an instruction on voluntary manslaughter (R.C. 2903.03) as an infe- rior degree of aggravated murder where there is no evidence presented that he was "under the influence of sudden passion or in a sudden fit of rage" when he shot the victim. State v. Tyler (1990), 50 Ohio St. 3d 24, 37. In the present case, appellant contends that he arrived home at 12:00 midnight or 12:30 a.m., made deviled eggs in the kitch- en, and then went to bed until the following morning. Appellant - 8 - introduced no evidence at all that he was "under the influence of sudden passion or in a sudden fit of rage" and, therefore, we con-clude that the trial court properly denied appellant's re- quest for an instruction on voluntary manslaughter (R.C. 2903.03- ). Assignments of Error III and IV are overruled. ASSIGNMENT OF ERROR V THE TRIAL COURT COMMITTED ERROR IN OVERRULING APPELLANT'S MOTION TO DISMISS THE INDICTMENT, WHICH MOTION WAS BASED ON THE MISCONDUCT OF THE PROSECUTION IN SEEKING A CONTINUANCE OF THE PRELIMINARY HEARING IN BAD FAITH, THEREBY DENYING APPELLANT HIS RIGHT TO DUE PROCESS OF LAW. Appellant argues that the trial court erred in overruling appellant's motion to dismiss the indictment based upon the trial court's grant of a continuance of his preliminary hearing. This argument is without merit. Crim. R. 5(B) provides that, in a felony case, a defendant is entitled to a preliminary hearing within ten days following his arrest or service of summons if he is in custody. This rule also states that a preliminary hearing shall not be held if a defendant is indicted. In the present case, the appellant was arrested and placed in custody on July 5, 1990, and a preliminary hearing was sched- uled for July 16, 1990, within the ten-day period for holding a preliminary hearing. On July 16, 1990, the trial court granted - 9 - the prose-cution's request for a four-day continuance of the preliminary hearing, and the following day, July 17, 1990, the appellant was indicted by the grand jury. Appellant contends that he was pre-judiced by the continuance of the preliminary hearing beyond the expiration period set forth in Crim. R. 5(B). However, we have addressed this precise issue and held that appellant suffers no prejudice by the expiration of the period within which a preliminary hearing should have been held where a probable cause determination is made by a grand jury since this determination renders the preliminary hearing necessary. State v. Copeland, Miller (May 8, 1986), Cuyahoga App. No. 50370, unreported. Furthermore, the supreme court has held that it is not error for a trial court to overrule a motion to dismiss an indictment based on the failure of the defendant to receive a preliminary hearing within the mandated time period set forth in Crim. R. 5(B). State v. Pugh (1978), 53 Ohio St. 2d 153. Ac- cordingly, we conclude that the trial court did not err in over- ruling appellant's motion to dismiss the indict-ment. Assignment of Error V is overruled. ASSIGNMENT OF ERROR VI THE DISPARATE TREATMENT OF COUNSEL DENIED THE ACCUSED DUE PROCESS OF LAW AND THE EFFECTIVE ASSISTANCE OF COUNSEL. - 10 - Appellant contends that he was denied due process of law by the trial court's alleged display of hostility, antagonism and disdain for defense counsel. Appellant cites various pages in the record which he asserts support his contention. This argu- ment is without merit. Any expression of the trial court, and particularly any posi-tive statement, to the jury which indicates or even inti- mates to the jury the court's opinion on the facts and evidence is error. State v. Bridgeman (1977), 51 Ohio App. 2d 105. Upon a review of the instances cited by appellant in the record of the trial court's alleged disdain for defense counsel, we find that these instances were merely rulings on objections or other evidentiary rulings. We find that the trial court made no comments which would convey to the jury an opinion about the evidence. Thus, appellant has failed to demonstrate that the conduct of the trial court denied him a right to a fair trial. Assignment of Error VI is overruled. ASSIGNMENT OF ERROR VII WHEN PROSECUTORIAL MISCONDUCT IS COMPOUNDED BY ERRORS OF COMMISSION AND OMISSION BY THE TRIAL COURT, THE CUMULATIVE EFFECT IS TO DENY AN ACCUSED A FAIR TRIAL. Appellant raises several arguments under this assignment of error which will be addressed in turn. First, appellant contends that the cumulative effect of the errors raised by appellant re- quire the reversal of appellant's conviction. However, we have - 11 - previously addressed these alleged errors and have found each one to be without merit. Second, appellant contends the prosecutor's improper comment on the appellant's right to remain silent upon his arrest consti- tuted prejudicial error. This argument is without merit. The issue to be determined when a defendant claims that the prosecutor's comment on the defendant's failure to testify was prejudicial error is whether, absent the prosecutor's allusion to the defendant's failure to testify, it is clear beyond a reason- able doubt the jury would have returned a guilty verdict. State v. Reyna (1985), 24 Ohio App. 3d 79. In the present case, while the prosecutor improperly asked the defendant whether he made a statement to the police regarding his testimony at trial, we cannot find that the jury's verdict would have been different in the absence of the comment in light of the testimony by several state's witnesses identifying the appellant as the assailant. Third, appellant contends that the trial court refused to permit defense counsel to make Rule 29 motions. However, the record reflects that defense counsel was permitted to make the Rule 29 motions, but was refused permission to orally argue the motions. As the Rules of Criminal Procedure do not require the trial court to hear oral arguments on Rule 29 motions, this argument is without merit. See, R.C. 2945.03. - 12 - Appellant also contends that the trial court erred in re- serving a ruling on the Rule 29 motion until the close of all of the evidence. However, Crim. R. 29(B) permits the trial court to re-serve decision on the motion. Thus, this argument is without merit. Finally, appellant contends that the trial court erred in denying defense counsel permission to voir dire prospective eye- witnesses prior to trial. The record demonstrates that the iden- tification witnesses were neighbors and acquaintances of the appel-lant who were able, therefore, to make a clear identifica- tion of appellant as the assailant. We cannot find that the trial court abused its discretion in denying appellant's request for a voir dire examination of the witnesses based on appellant's contention that the identifications were unreliable. Accordingly, Assignment of Error VII is overruled. ASSIGNMENT OF ERROR VIII DUE PROCESS IS DENIED AN ACCUSED WHERE THE CONVICTION HAS BEEN OBTAINED UPON EVIDENCE INSUFFICIENT AS A MATTER OF LAW. Appellant challenges the sufficiency of the evidence to sup- port his conviction. If there were evidence which, if believed, would convince the average person of the accused's guilt beyond a reasonable doubt, we must reject his contention. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. The weight to be given the evidence and the credibility of the testimony are primarily for the trier of fact. Where the - 13 - record shows that a conviction was based upon sufficient evi- dence, an appellate court may not reverse the verdict of the trier of fact. State v. DeHass (1967), 19 Ohio St. 2d 230. The aggravated murder statute (R.C. 2903.01) states, in perti-nent part, that no person shall purposely, and with prior calculation and design, cause the death of another. In the present case, the state presented four eyewitnesses to the shooting, along with corroborating physical evidence. Testimony was adduced that the appellant ordered the co-defendant to get his gun and told the victim he was going to kill him. Thus, suffi-cient evidence was adduced for a jury to find that the appellant caused the death of the victim "with prior calcula- tion and design." Therefore, we conclude the jury was provided with sufficient evi-dence to find the appellant guilty of aggra- vated murder (R.C. 2903.01). Assignment of Error VIII is overruled. 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 Cuyahoga County Court of Common Pleas 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. DAVID T. MATIA, C.J. CONCURRING ANN McMANAMON, J. DISSENTING (See attached opinion) JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. 60817 : : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : D I S S E N T I N G : DARRYL J. SMITH : O P I N I O N : Defendant-Appellant : : : DATE: JUNE 11, 1992 ANN McMANAMON, J., DISSENTS: I respectfully dissent from the resolution of the defen- dant's first assignment of error. I believe the trial court erred by refusing to review the defendant's R.C. 149.43 request for the police investigatory records. In State, ex rel. Shane, v. New Philadelphia Police Dept. (1990), 56 Ohio St. 3d 36, the supreme court denied the defendant's writ of mandamus to compel disclosure of a police homicide record. During the defendant's criminal trial, the court denied the defendant's request that the New Philadelphia police release the records relating to the homicide. The defen- dant was convicted of murder. In denying the writ, the supreme court held: -1- "*** [W]e conclude Shane had an adequate legal remedy, criminal discovery, to test any right he had to obtain these documents as public records. Trial courts can decide R.C. 149.43 issues in the discovery process. *** If the trial court wrong- fully decided the R.C. 149.43 issues, Shane could obtain redress by way of appeal from his criminal conviction." Id. at 37 [citations omitted]. Thus, the supreme court recognized a defendant's right to request public records pursuant to R.C. 149.43 during a criminal trial as well as the trial court's duty to address such a request. Id. See, also, State, ex rel. McGee, v. Ohio State Bd. of Psychology (1990), 49 Ohio St. 3d 59, 61 (trial courts are fully able to decide R.C. 149.43 issues in any discovery process). In the instant case, the defendant filed a motion for dis- covery of the police investigatory records, particularly witness statements, pursuant to R.C. 149.43. When the state refused dis- closure, the defendant filed a motion to compel. The defendant also subpoenaed the police department for the records. The trial court ruled the defendant was limited to Crim. R. 16 discovery, denied the defendant's motion, and refused to preserve the disputed police records for appellate review. Crim. R. 16 discovery is not synonymous with the discovery a defendant receives through the release of public records under R.C. 149.43. Thus, the trial court erred by not conducting a review of the records under the statute. Furthermore, the court's refusal to preserve the records for our review makes it impossible for this court to determine if the defendant was unduly prejudiced by the error. -2- In light of the supreme court's decision in Shane, I would remand the case to the trial court for review of the R.C. 149.43 public records request. Should the trial court determine that any of the records are subject to disclosure, that court then should decide whether a new trial is warranted. Cf. State v. Shedrick (1991), 59 Ohio St. 3d 146 (case remanded for trial court to determine whether evidence admitted in violation of R.C. 2151.358(H) and, if so, whether new trial warranted). .