COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61080 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CARLTON W. WILLIAMS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-257645 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL D. HORN, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: GORDON S. FRIEDMAN Friedman & Gilbert 1700 Standard Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant-appellant Carlton Williams appeals from his conviction for murder of Elbert Banks in violation of R.C. 2903.02 with an accompanying firearm specification pursuant to R.C. 2941.14.1. Defendant was indicted by the Cuyahoga County Grand Jury for the aggravated murder of Elbert Banks in violation of R.C. 2903.01 with an accompanying firearm specification. The charges arose from a shooting in the early morning hours of September 2, 1990 outside an apartment at 4200 Green Court in the City of Cleveland. Defendant pled not guilty to the charges and the case proceeded to a jury trial commencing November 28, 1990. During opening statements the prosecution stated defendant killed the victim in cold blood, whereas in defendant's opening statement defendant denied he had any intent to kill the victim and claimed he acted in self-defense. The prosecution presented ten witnesses to support the aggravated murder charges at trial, including testimony from three eyewitnesses, viz., Brenda Mason, Atlonia Humphrey and Carolyn Stafford. According to the testimony adduced at trial, Mason, Humphrey and Loretta Mims met the victim, Elbert Banks, while purchasing beer at a gas station located at the corner of East 40th Street and Quincy Avenue. Banks, who had been drinking before the encounter, ultimately returned with the three women to the front - 3 - steps of the apartment building where Mason resided with her sister's family. The group proceeded to drink the beer while engaging in conversation and Mims eventually left the steps. Mason, Humphrey and Carolyn Stafford, a neighbor living on the third floor of the apartment building, testified concerning the circumstances of the subsequent altercation and shooting. Mason testified that defendant, whom she had met four months earlier and who had been trying to arrange a date with her, arrived and "snatched" her away from the group and proceeded to escort her toward a light pole in the courtyard of the apartment complex. Mason stated she was afraid of defendant and had been avoiding him because she knew he carried a gun in connection with his "work." Mason testified that the victim, Banks, walked over toward the light pole where she and the defendant were standing and stated to defendant "you disrespecting me" by taking Mason away from the steps while she was talking to Banks. Mason testified that defendant responded to Banks with the statement "Shut up before I shoot you." Defendant and Banks thereafter began to exchange words and Mason and Humphrey testified they requested Banks return to the front steps in an attempt to stop the argument between defendant and the victim. Stafford testified that she heard the loud talking below her apartment as she was preparing to go to sleep on the couch and looked out her window. - 4 - Humphrey and Stafford testified respectively that defendant ultimately stated to Mason during the course of the argument "Bitch, get out of the way before I shoot both of you" and "get out of the way or I'll shoot you too." Mason's statement to the police indicated that Banks produced a gun after defendant pulled out his 9mm semi-automatic handgun. Despite Mason's testimony to the contrary, neither Humphrey nor Stafford testified Banks had a gun. Mason and Humphrey testified they ran toward the apartment building after defendant fired his first shot. Mason testified that as she looked back from the entrance of the building, she saw the victim hopping on one leg toward the lamp post before she heard more shots. Stafford testified that defendant talked with two unidentified friends, referred to as "Jamaicans," before returning to fire more shots at Banks. An unidentified male rendered assistance to Banks after defendant fled the scene. The E.M.S. and Patrolman Kathleen Caplin arrived on the scene in response to an emergency call shortly thereafter but found no gun on the victim. Homicide detectives Parker Adrine and Wilmore Larry and forensic detective Thomas Lucey testified concerning their subsequent homicide investigation and examination of two 9mm shell casings and a bullet recovered from the body of the victim. Patrolman Richard Annable testified concerning defendant's arrest nine days later following a traffic accident at East 93rd Street and Union Avenue in which defendant was involved. The police found defendant - 5 - hiding in a garage in the neighborhood after he eventually fled the scene of the accident on foot. Doctor Robert Challener of the Cuyahoga County Coroner's Office testified that he performed an autopsy on Banks and observed two gunshot wounds. One shot passed through the victim's right thigh. The other bullet struck the left side of the victim's chest and penetrated his heart, esophagus and spinal cord and caused his death. The victim's blood alcohol content was .13 percent. After the trial court received various exhibits into evidence and denied defendant's Crim. R. 29 motion for judgment of acquittal, defendant testified on his own behalf. Defendant testified Banks produced a gun and threatened him after he told Banks to mind his own business. According to defendant, Banks stated "Get your old MF from her before I shoot you." Defendant stated that he thereafter produced his own 9mm pistol, told Mason to "look out" and fired two shots in rapid succession until the gun jammed. Defendant testified that he was afraid Banks would kill him and that the incident happened "so fast." Defendant admitted that nothing the victim said provoked defendant into shooting the victim. Defendant was unable to explain why Banks did not return fire if Banks was armed with a weapon and gave equivocal testimony concerning whether he could have run from the scene prior to shooting Banks from a distance of approximately ten feet. - 6 - Prior to the parties' closing arguments and instructions to the jury, the following colloquy occurred between the trial court and defense counsel: THE COURT: I'm not going to charge involuntary manslaughter, so you are not going to get a charge on that. [DEFENSE COUNSEL]: Could the record reflect counsel for the defendant has requested an instructing on involuntary manslaughter? (Emphasis added.) (Tr. 547). The trial court thereafter instructed the jury concerning aggravated murder, murder and self-defense. The record contains the following exchange after the trial court's charge prior to the submission of the case to the jury: [DEFENSE COUNSEL]: Just one other point. I would move again that the Court instruct the jury on the lesser crime of voluntary manslaughter. I believe the way the evidence came in, particularly through closing argument, both the State and defense, that an instruction on voluntary manslaughter should be given. THE COURT: Okay, I'll not do that. (Emphasis added.) (Tr. 670-671). The jury subsequently returned from its deliberations and twice requested the trial court repeat the aggravated murder instructions. The jury rejected defendant's claim of self-defense and found defendant guilty of the lesser charge of murder the following day. Defendant timely appeals raising four assignments of error. The Court shall address defendant's third assignment of error first. - 7 - Defendant's third assignment of error challenges the trial court's denial of his Crim. R. 29 motion for judgment of acquittal on the charge of aggravated murder as follow: III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL. A. THE STATE FAILED TO PROVIDE ANY EVIDENCE OF "PRIOR CALCULATION AND DESIGN", AND THUS THE STATE FAILED TO MEET ITS BURDEN OF ESTABLISHING A PRIMA FACIE CASE OF AGGRAVATED MURDER. Defendant's third assignment of error lacks merit. Defendant contends the evidence adduced at trial was insufficient to establish the "prior calculation and design" element of aggravated murder and the charge should not have been submitted to the jury. R.C. 2903.01(A) defines aggravated murder as follows: No person shall purposely, and with prior calculation and design, cause the death of another. Defendant concedes the prosecution presented sufficient evidence defendant "purposely," that is with "specific intent" as defined by R.C. 2901.22(A), caused the death of Banks. However, defendant claims the evidence demonstrated the shooting resulted without "prior calculation and design" from only "instantaneous deliberation" based on "a wholly fortuitous encounter between two armed combatants who became involved in a brief and explosive confrontation over 'disrespect' (T. 234) and the attentions of a woman." (Brief at 22.) - 8 - The standard governing motions for judgment of acquittal in this context has been stated by the Ohio Supreme Court as follows: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. Based upon our review of the record sub judice, we find the prosecution presented sufficient evidence, if believed, from which the jury could have found all the essential elements of the offense of aggravated murder beyond a reasonable doubt. The evidence and reasonable inferences drawn therefrom viewed in the light most favorable to the prosecution tended to establish defendant's decision to kill Banks resulted from more than "instantaneous deliberation." The following evidence supports a reasonable inference defendant had sufficient time and opportunity to make and implement a calculated decision to kill the victim between the time he wounded the victim in the leg and fired the fatal shot into his heart from short range while the victim pled for his life. Stafford testified defendant pulled his 9mm semi-automatic handgun out two different times during the incident. Mason and Stafford testified that Banks hopped on one leg toward the - 9 - lamppost after he was wounded in the leg by the first shot. Stafford stated that Banks raised his hands in the air "like he was pleading for his life" during this time. Stafford stated that defendant talked with two friends after wounding Banks in the leg and returned to the scene to fire the fatal shot at Banks. Based upon this testimony, we find the prosecution presented sufficient evidence from which reasonable minds could reach different conclusions concerning the element of "prior calculation and design" and the trial court did not err in denying defendant's motions for judgment of acquittal. The fact the jury ultimately found defendant guilty of only the lesser charge of murder does not demonstrate the prosecution failed to present sufficient evidence to support the aggravated murder charge. Accordingly, defendant's third assignment of error is overruled. Defendant's first assignment of error challenges the trial court's refusal to instruct the jury on the lesser charge of voluntary manslaughter as follows: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ITS REFUSAL TO INSTRUCT THE JURY ON VOLUNTARY MANSLAUGHTER. A. SUFFICIENT EVIDENCE WAS ADDUCED AT TRIAL SUCH THAT A JURY COULD HAVE REASONABLY ACQUITTED APPELLANT OF AGGRAVATED MURDER AND CONVICTED DEFENDANT OF VOLUNTARY MANSLAUGHTER. - 10 - Defendant's first assignment of error lacks merit. Defendant contends the trial court improperly refused to instruct the jury on the offense of voluntary manslaughter since the evidence presented by the parties revealed sufficient mitigating circumstances. R.C. 2903.03 defines the crime of voluntary manslaughter as follows: No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. As noted above, there is no dispute defendant caused the death of Banks. Defendant's theory of the case in opening statement was self-defense. However, defendant subsequently made an oral request for an involuntary manslaughter instruction at 1 the close of the evidence prior to closing arguments. Apparently for strategic reasons defendant deliberately failed to make any request for a voluntary manslaughter instruction prior to closing arguments and only requested an oral voluntary manslaughter instruction after the trial court had completed its instructions to the jury. The record demonstrates the trial court denied defendant's request for a voluntary manslaughter 1 Defendant's brief raises no argument concerning the trial court's denial of his request to give the jury an involuntary manslaughter instruction and we deem any such claim of error in this context to be waived. - 11 - instruction and defendant failed to object to the omission of such a charge. (Tr. 670-671). Crim. R. 30(A) establishes the procedure governing jury instructions in this context and provides in pertinent part as follows: At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies shall be furnished to all other parties at the time of making the requests. The court shall inform counsel of its proposed action on the requests prior to counsel's arguments to the jury and shall give the jury complete instructions after the arguments are completed. *** On appeal, a party may not assign as error the giving or failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. *** The record demonstrates defendant failed to comply with Crim. R. 30 by (1) submitting a timely written request for instructions to the trial court prior to closing arguments or at any time, and (2) objecting to the trial court's omission of the requested voluntary manslaughter instruction prior to submission of the case to the jury. The Ohio Supreme Court has affirmed the refusal to provide a voluntary manslaughter instruction on procedural grounds when the defendant fails to make a timely written request as in the case sub judice. State v. Tyler (1990), 50 Ohio St. 3d 24, 36. Defendant's subsequent oral - 12 - request for a voluntary manslaughter instruction was not sufficiently specific to apprise the trial court of the evidence supporting the request as required by Crim. R. 30(A). The record demonstrates defendant's theory of the case was "self-defense" and that defendant sought to interject additional issues at the conclusion of the case after this defense had been thoroughly undermined and deliberately did not request a voluntary manslaughter instruction when presentation of it would not interfere with the orderly progress of the case. As a result, defendant waived any claim of error concerning the omission of a voluntary manslaughter instruction. Moreover, even if defendant had properly requested a written voluntary manslaughter instruction pursuant to Crim. R. 30, the evidence adduced at trial was insufficient, as a matter of law, to warrant such an instruction. State v. Shane (1992), 63 Ohio St. 3d 631. Voluntary manslaughter instructions are not mandated in all murder or aggravated murder cases. Id. at 633. Rather, voluntary manslaughter instructions are warranted only when there is sufficient evidence presented at trial which would allow a jury to reasonably reject the greater offense of aggravated murder or murder and find the defendant guilty on a lesser included or inferior-degree offense of involuntary manslaughter. Id. at 632-633. Based upon our review of the record sub judice, there was insufficient evidence of serious provocation reasonably - 13 - sufficient to incite defendant into using deadly force to warrant a voluntary manslaughter instruction. Id. Defendant completely undermined his claim of provocation by expressly admitting that whatever the victim said to him during their brief exchange of words was not enough to cause defendant to pull out his gun and shoot the victim. (Tr. 533). Defendant's claim of self-defense adequately raised any remaining issues relating to the threat from the victim's alleged possession of a handgun. Defendant's carrying of a concealed and unregistered 9mm semi-automatic handgun demonstrates an advanced preparation for and predisposition to use extreme and deadly force and the trial court properly rejected defendant's request for a voluntary manslaughter instruction. Finally, under the circumstances, error, if any, in omitting the voluntary manslaughter instruction was harmless. See State v. Jackson (986), 22 Ohio St. 3d 281, 285 (failure to give self- defense instruction harmless). The jury's two requests for additional instructions concerning aggravated murder demonstrates the jury was concerned with whether or not defendant committed the crime of aggravated murder. Defendant's claim the victim threatened him with a weapon was thoroughly discredited by the prosecution. Two eyewitnesses testified the victim had no weapon and the one who testified to the contrary stated that she was intimidated by defendant. The jury's rejection of defendant's claim of self-defense demonstrates the jury was convinced - 14 - defendant's actions were not justified in any way, particularly given the lack of evidence presented by defendant concerning provocation necessary to demonstrate voluntary manslaughter. As noted above, the circumstances surrounding defendant's requests for voluntary and involuntary manslaughter instructions apparently resulted from defense counsel's trial strategy. We are unpersuaded by defendant's arguments that he has presented for this appeal to circumvent the effect of this deliberate tactical decision. See State v. Clayton (1980), 62 Ohio St. 2d 45. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error contends his conviction for murder is against the manifest weight of the evidence as follows: II. THE JURY VERDICT CONVICTING APPELLANT OF MURDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE MANIFEST WEIGHT OF THE EVIDENCE SHOWS THAT APPELLANT ACTED IN SELF- DEFENSE. B. ASSUMING, ARGUENDO, THAT THE JURY COULD REASONABLY HAVE FOUND DEFENDANT DID NOT ACT IN SELF DEFENSE, APPELLANT'S CONVICTION FOR MURDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE SUBSTANTIAL EVIDENCE POINTS TO THE MITIGATING CIRCUMSTANCES OF "PROVOCATION" AND "SUDDEN PASSION". Defendant's second assignment of error lacks merit. - 15 - Defendant contends the jury's finding of murder is against the manifest weight of the evidence since the weight of the evidence established defendant acted in self-defense or committed voluntary manslaughter. State v. Martin, supra, stated the following standard for reviewing claims that a conviction is against the manifest weight of the evidence: Here 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 exceptional case in which the evidence weighs heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 41; Id. at 175. Based upon our review of the record sub judice, we are unable to conclude the jury clearly lost its way and created a manifest miscarriage of justice. We note initially that under Ohio law self-defense is an affirmative defense and defendant bears the burden of establishing by a preponderance of the evidence a claim of self- defense. State v. Martin (1980), 21 Ohio St. 3d 91, aff'd, Martin v. Ohio (1987), 480 U.S. 228. The defendant also must establish by a preponderance of the evidence the mitigating circumstances of the inferior crime of voluntary manslaughter in - 16 - a prosecution for murder or aggravated murder. State v. Rhodes (1992), 63 Ohio St. 3d 613, syllabus. The record demonstrates the jury found defendant guilty of murder and specifically rejected defendant's claim of self- defense. There is ample evidence in the record to support the jury's finding defendant purposely, with specific intent, killed Banks in violation of R.C. 2903.02, including evidence that defendant was the aggressor, the victim had no weapon and defendant, therefore, could have avoided using deadly force. Moreover, since there was insufficient evidence to raise an issue for the jury concerning voluntary manslaughter as a matter of law as discussed above under defendant's first assignment of error, defendant ipso facto failed to present sufficient evidence to sustain his burden of proving this issue. State v. Rhodes, supra. Under the circumstances, we are unable to find defendant's conviction of murder is against the manifest weight of the evidence. The Ohio Supreme Court has noted in this context that once sufficient evidence has been presented, the evaluation of the credibility of the witnesses and weight given their testimony is primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 3d 230. Based upon our review of the record together with the reasonable inferences drawn therefrom, considering the testimony and credibility of defendant and the prosecution witnesses, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. - 17 - Accordingly, defendant's second assignment of error is overruled. Defendant's fourth assignment of error contends the trial court should have granted a mistrial as follows: IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY REFUSING TO DECLARE A MISTRIAL AFTER THE STATE WILLFULLY ELICITED UNFAIRLY PREJUDICIAL EVIDENCE THAT HAD BEEN EXCLUDED BY THE COURT PURSUANT TO APPELLANT'S MOTION IN LIMINE. Defendant's fourth assignment of error lacks merit. Defendant argues the trial court improperly denied his motion for a mistrial on the grounds that various witnesses referred to defendant as "the Jamaican" and the prosecutor attempted to elicit testimony from defendant concerning $1,552 in defendant's possession at the time of his arrest. Defendant contends the prosecution sought to portray defendant as a Jamaican drug dealer. A trial court's denial of a motion for mistrial based upon comments by a prosecution witness will not be reversed absent an abuse of discretion. State v. Warren (1990), 63 Ohio App. 3d 789, 798-799. The Court in State v. Warren, supra, recognized that a witness' inadvertent interjection of extraneous matters may be cured by trial court instructions to disregard the comments upon timely objection as in the case sub judice. Id. at 799; (Tr. 273). The record demonstrates defense counsel referred to defendant as "the Jamaican," (Tr. 235), and did not always object or request curative instructions when such descriptions - 18 - were made throughout the trial. Defendant has failed to demonstrate that this description of defendant was elicited by the prosecution to circumvent the trial court's pretrial ruling to exclude references to defendant as "the Jamaican." Defendant also complains about the prosecutor's reference to defendant's possession of $1,552 in cash at the time of his arrest. However, it is well established that conduct of a prosecutor during trial likewise does not constitute reversible error unless such conduct deprived defendant of a fair trial. State v. Vrona (1988), 47 Ohio App. 3d 145, 153-154. The transcript contains the following exchange concerning the currency found on defendant at the time of his arrest: PROSECUTOR: But you told us you were a landscaper? DEFENDANT: Landscape, handyman, just like I told him. A[SIC]. Is that why you had $1,552 on you when you were arrested? [DEFENSE COUNSEL]: Objection. [THE COURT]: The jury will disregard that. (Tr. 493-494). The trial court subsequently denied defendant's motion for a mistrial and again instructed the jury to disregard the question following the conclusion of the side bar conference. (Tr. 495). Under the circumstances given the trial court's prompt curative instructions, and the presumption that the jury follows - 19 - such instructions, we are unable to conclude defendant was deprived of a fair trial or that such comments materially and adversely affected defendant's substantial rights. State v. Warren, supra; State v. Vrona, supra. Defendant is entitled to a fair trial not a perfect one. State v. Williams (1988), 38 Ohio St. 3d 346. Under all the circumstances of the case sub judice, defendant received a fair trial. Accordingly, defendant's fourth assignment of error is overruled. Judgment affirmed. - 20 - 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. DYKE, P.J., and ANN McMANAMON, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .