COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61173 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DANE A. WITT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OCTOBER 1, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 253796 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor Edward Kraus, Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street, 8th Fl. Cleveland, OH 44113 For defendant-appellant: JOHN PARIS, ESQ. THOMAS PARIS, ESQ. 1575 Illuminating Bldg. 55 Public Square Cleveland, OH 44113 - 2 - PARRINO, J. Defendant-appellant Dane A. Witt ("appellant") appeals his convictions of one count of aggravated robbery (R.C. 2911.01) with a firearm specification, one count of possession of criminal tools (R.C. 2923.24) and one count of a violation of the drug law (R.C. 2925.11), being less than the bulk amount. The victim, Michael Macall ("victim"), a gas station attendant, testified that, at approximately 5:15 in the morning, while on his shift, appellant pulled in the gas station, walked up to the service window and requested a pack of cigarettes. After the transaction was completed, appellant pulled out a gun from his waistband and pointed it at the victim (R. 45). Appellant demanded the money from the cash register, which sum was $175. The victim testified that he was able to get a good look at the gun and appellant, describing both in detail. Although the gun was never retrieved, the victim's description of appellant as the assailant was indeed accurate. The victim then observed appellant flee, after taking the cash, in a blue four-door Oldsmobile. The victim also took notice of appellant's license plate number. He phoned his boss, John McGroarty, and then called the police. Patrolman Miller Atchley of the Euclid Police Department responded to the call. He testified that the victim had been "traumatized" and seemed very "scared" (R. 78). Patrolman - 3 - Atchley also related the events as told to him by the victim. It mirrored the earlier testimony of the victim. A radio broadcast was then dispatched of the description of appellant and his vehicle. Detective Ernie Iafelice of the Euclid Police Department was the detective assigned to investigate this case. Appellant was arrested shortly after the assignment. Appellant was taken down to the station and advised of his Miranda rights. According to Detective Iafelice's testimony, appellant said he understood his constitutional rights and "called an attorney." (R.90). The transcript indicates that, after appellant called an attorney, the conversation between him and Detective Iafelice resumed. Appellant told the detective that he was "loaded" and did not remember the events of the robbery or where he was on the day of the robbery. He stated he leased the blue Oldsmobile and denied having a weapon on his person the day in question. Appellant told Detectives Iafelice and Raymond Jory, also of the Euclid Police Department, that he was a heavy user of crack cocaine and that he had a substance abuse problem (R. 105, 163). Defense counsel called one Nathan Gill to the stand. Gill was purportedly the passenger in appellant's vehicle the day in question. The trial court, after an inquiry with counsel, had a public defender appointed for Gill. Defense counsel believed Gill's testimony would corroborate that of appellant's. However, - 4 - Gill refused to answer questions once on the stand invoking his fifth amendment right against self-incrimination. Appellant testified in his own behalf. He stated he had known the victim and that the victim was merely loaning him money for "personal reasons." (R. 268). The first time appellant allegedly borrowed money from the victim was at approximately 2:30 a.m. the morning in question. Appellant testified that Gill needed the money. Thereafter, they drove to a house in Cleveland and Gill "ran in [and] *** didn't come out for a [sic] while." (R. 272). Apparently, Gill asked appellant to come back in one-half hour. In compliance, appellant left and went to a gas station because he was low on fuel. Appellant then returned for Gill. They then travelled to a friend's house where Gill asked appellant again if he could get money for him. Appellant told Gill "*** don't worry ***. I'll help get the money." (R. 274). Appellant went back to the subject gas station and testified that the victim "was happy to see [him]." (R. 274). The victim allegedly willingly loaned appellant more money (R. 275). Appellant denied using crack cocaine the night and day in question and denied committing the robbery. He now appeals his convictions assigning three errors for our review: I. DEFENDANT DANE A. WITT WAS DENIED HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL AS A RESULT OF CONTINUED INTERROGATION OF DEFENDANT BY POLICE OFFICERS - 5 - FOLLOWING DEFENDANT'S INDICATING HE WANTED AN ATTORNEY PRESENT DURING QUESTIONING. II. DEFENDANT DANE A. WITT WAS DENIED HIS CONSTI- TUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF HIS ATTORNEY'S: (A) FAILURE TO FILE A MOTION TO SUPPRESS THE STATEMENTS OF DEFENDANT TO POLICE OFFICERS, WHICH STATEMENTS RESULTED FROM IMPROPER INTERROGATION OF DEFENDANT; (B) FAILURE TO OBJECT TO GROSSLY IMPROPER AND REPETITIVE HEARSAY EVIDENCE; (C) FAILURE TO REQUEST A HEARING ON A DULY FILED MOTION TO SUPPRESS PHYSICAL EVIDENCE; AND, (D) CALLING A DEFENSE WITNESS TO THE STAND AND ALLOWING SAID WITNESS TO INVOKE HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF- INCRIMINATION IN THE PRESENCE OF THE JURY. III. THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT THE FIREARM ALLEGEDLY USED IN THE COMMISSION OF THE OFFENSE, WAS OPERABLE OR COULD HAVE BEEN RENDERED OPERABLE FOR IMPOSITION OF ADDITIONAL THREE YEARS OF ACTUAL INCARCERATION FOR POSSESSION OF A FIREARM WHILE COMMITTING A FELONY. I. In his first assignment of error, appellant argues his due process rights were violated when he indicated, during police interrogation, that he wanted an attorney present but the police continued to interrogate him without one present. First, the record reflects that, after being administered his Miranda rights and acknowledging he understood them, appellant wished to call his attorney. Then, the record - 6 - indicates appellant called his attorney and thereafter engaged in a "conversation" with Detective Iafelice: Q. Detective, after taking the statement from Mr. Macall, what did you do? A. After I completed that, I spoke to Mr. Dane Witt. Q. And before you spoke to Mr. Dane Witt, did you orally and in writing advise Mr. Witt of his constitutional rights? A. Yes, I did. I went back to the jail, got out Mr. Witt, brought him to my office, advised him of his legal rights, Miranda rights, which he understood, which he signed. I told him the seriousness of the investiga- tion and if he wanted to make a phone call to an attorney, he could, which he did. Q. And Detective Iafelice, what were those constitutional rights? A. I advised him he had a right to remain silent, anything he would say would be used against him in a court. That he had a right to be represented by an attorney. That if he wished to make a statement at that time, he could stop answering at any time, and advised him that if he wanted an attorney present, he could do so. Q. Did he state he understood his constitu- tional rights? A. Yes, he did. He called an attorney. Q. After that did you have a conversation with Mr. Witt? A. Yes. I told him the seriousness of the charge and asked him if he was involved in the thing, and he told me he couldn't recall anything. ***." (R. 89-91). - 7 - Nothing in the record indicates appellant was coerced into continuing his conversation with Detective Iafelice. More importantly, however, is that a pre-trial motion to suppress any statements made by appellant to police while in custody was never filed nor any objection made for the record. Crim. R. 12(B)(3) reads: (B) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial: * * * (3) Motions to suppress evidence, including but not limited to statements and identifi- cation testimony, on the ground that it was illegally obtained. Such motions shall be filed in the trial court only. Crim. R. 12(G) reads: (G) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver. The Ohio Supreme Court in State v. Wade (1978), 53 Ohio St. 2d 182, paragraph three of the syllabus held: "The failure to move within the time specified by Crim. R. 12(C) for the suppression of evidence on the basis of its - 8 - illegal obtainment constitutes a waiver of the error." Similarly, in State v. Moody (1978), 55 Ohio St. 2d 64, the court held that no reversible error was committed where defense counsel did not file a pre-trial motion to suppress the appellant's statements made to police while in custody. The Moody court reasoned that "[t]he defense had ample opportunity before trial to determine whether the police authorities adequately afforded the defendant his constitutional and statutory rights to counsel." Id. at 66. The Moody court concluded that "[c]learly, by failing to timely file his motion to suppress before trial, the appellant waived any error. [citations omitted]." Id. We are compelled to reach the same conclusion in this case. Defense counsel had ample opportunity to prepare and file a motion to suppress the statements of appellant while in custody, but did not do so. Accordingly, this assignment of error will not be considered by this court. See, State v. Davis (1964), 1 Ohio St. 2d 28; State v. Carter (1970), 21 Ohio St. 2d 212, 213; 1 Crim. R. 12(C) reads: (C) Motion Date. All pretrial motions except as provided in Rule 7(E) and Rule 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions. - 9 - State v. Moody, supra; State v. Savage (1980), 1 Ohio App. 3d 13, 15. The first assignment of error is overruled. II. In his second assignment of error, appellant argues he was denied the effective assistance of counsel and therefore did not receive a fair trial. In order to substantiate a claim of ineffective assistance of counsel, the appellant must demonstrate that his counsel deprived him of a fair trial. The appellant must demonstrate that: 1) defense counsel's performance at trial was seriously flawed and deficient; and 2) the result of the trial would have been different if defense counsel had provided proper representation at trial. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. A presumption that a properly licensed attorney executes his legal duty in an ethical and competent manner must be applied to any claim of ineffective assistance of counsel. State v. Smith (1985), 17 Ohio St. 3d 98; Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In addition, this court must accord deference to defense counsel's strategic choices made during trial and cannot examine the strategic choices of counsel through hindsight. Strickland v. Washington, supra, at 689. A. - 10 - First, appellant claims he was denied the effective assistance of counsel by his counsel's failure to file a timely motion to suppress his statements made while in police custody. We disagree. Where the record is devoid of facts to indicate that a motion to suppress would have been granted, a claim for ineffective assistance of counsel must fail. See, State v. Lipford (Dec. 7, 1989), Cuyahoga App. No. 56027, unreported, at 8. Similarly, "where there exists no grounds for the suppression of evidence, a defense attorney has no duty to file a motion to suppress evidence." State v. Gibson (1980), 69 Ohio App. 2d 91, 95. Hence, "[w]here the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion." Id. The same reasoning is applicable in this case and we are compelled to reach the same conclusion. The record is devoid of facts which would indicate the statements were coerced or otherwise illegally obtained during police custodial interrogation. Moreover, we fail to see how the outcome would clearly have been different had a motion to suppress regarding these statements been filed. B. Second, appellant argues he was denied the effective assistance of counsel by trial counsel's failure to object to - 11 - "grossly improper and repetitive hearsay evidence." Appellant refers to the testimony of state's witnesses: (1) Patrolman Atchley; (2) Detective Iafelice; (3) John McGroarty, and; (4) Detective Jory. These witnesses corroborated the victim's version of events. Our review of the record reveals that the failure to object to the testimony of the state's witnesses was not prejudicial and did not deny appellant a fair trial, nor has appellant demonstrated such failure was seriously deficient and that the outcome of the trial would clearly have been different. C. Third, appellant also argues that his trial counsel's failure to request a hearing on a motion to suppress physical evidence denied him the effective assistance of counsel. Again, we must disagree. The physical evidence in this case was a crack cocaine pipe. There is no evidence in the record, nor has appellant brought any to our attention any evidence to suggest that there existed grounds for suppression. D. Last, appellant contends that trial counsel denied him the effective assistance of counsel by calling a defense witness to the stand, Gill, whom invoked his fifth amendment right against self-incrimination and refused to answer any questions. - 12 - Appellant has not demonstrated, nor given a slight indication how this deprived him of a fair trial based upon the ineffective assistance of counsel and we decline his invitation to so find. Accordingly, the second assignment of error is overruled. III. In his third assignment of error, appellant argues the state failed to meet its burden of proving the operability of the firearm allegedly used during the commission of the robbery. Accordingly, he contends the imposition of the additional three year actual incarceration for possession of the firearm is reversible error. We do not agree. In State v. Murphy (1990), 49 Ohio St.3d 206, syllabus, the Ohio Supreme Court held: "The state must present evidence beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can received an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v. Gaines [1989], 46 Ohio St. 3d 65, 545 N.E. 2d 68, modified.)" The challenge of the Murphy court was "to establish exactly what type of evidence is sufficient in determining whether the state has met its burden of proof." Id. at 208. In order to meet its challenge, the court reviewed the intent of the following legislation: - 13 - "(A) The court shall impose a term of actual incarceration of three years * * * if both of the following apply: "(1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code; "(2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment." R.C. 2929.71. The legislature, in enacting the aforementioned legislation, wished to "send a message to the criminal world: 'If you use a firearm you will get an extra three years of incarceration.'" Id. Necessarily included within the definition of "firearm" is loaded as well as unloaded guns that can be readily rendered operable. Id. The Murphy court concluded from this analysis that the state may reasonably rely "upon all of the surrounding facts and 2 "Firearm" is defined in R.C. 2923.11(B) as "*** any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable." - 14 - circumstances in establishing whether a firearm was used in the commission of a felony." Id. In Murphy, the indicia of operability, based upon the totality of the circumstances, included: 1) the defendant had the handgun wrapped in a shirt; 2) eyewitnesses described the gun, with two of the witnesses corroborating one another's description, and; 3) testimony that the defendant pointed the gun at two witnesses, waived it back and forth, and threatened that if he did not get the money, he would kill the clerk of the store. Id. at 208. In this case, there was sufficient indicia of operability under the totality of the circumstances. The victim testified that: 1) appellant pulled the gun from his waistband and pointed it at him (R. 45); 2) the victim described the gun with speci- ficity, including the color of the gun and color, length and type of handle; 3) appellant threatened "[g]ive me all the money in the cash register." (R. 47); and 4) the victim testified he "was afraid that he [appellant] was going to shoot through the window" that separated him from the appellant during the robbery. (R. 69). We conclude, after a comprehensive review of the evidence, that there was sufficient indicia of operability of the firearm. Accordingly, the third assignment of error is 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 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. SPELLACY, P.J. HARPER, J., CONCUR. JUDGE THOMAS J. PARRINO* (*SITTING BY ASSIGNMENT: Thomas J. Parrino, Retired Judge of 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 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. .