COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66648 GERALD E. FUERST, CLERK OF COURTS STATE OF OHIO : COURT OF APPEALS NO. 66648 : Plaintiff-Appellee : LOWER COURT NO. CR-290742 : COMMON PLEAS COURT -vs- : : MOTION NO. 64873 CLAYTON HARRIS : : Defendant-Appellant : DATE: JULY 17, 1995 JOURNAL ENTRY The prior Journal Entry and Opinion of this court released on July 13, 1995 contained an error on the cover page, which reads: "DATE OF ANNOUNCEMENT: JUNE 13, 1995" This sentence should have read as follows: "DATE OF ANNOUNCEMENT: JULY 13, 1995" IT IS HEREBY ORDERED that said Journal Entry and Opinion of July 13, 1995, be amended nunc pro tunc to correct the error set forth above. The Amended Journal Entry and Opinion, nunc pro tunc July 17 1995, is attached. IT IS FURTHER ORDERED that, as so amended, said Journal Entry and Opinion of July 13, 1995 shall stand in full force and effect as to all its particulars. JAMES D. SWEENEY, P.J.,CONCURS. PATRICIA ANN BLACKMON PRESIDING JUDGE COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66648 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : CLAYTON HARRIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 13, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-290742 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue JOHN R. KOSKO, ESQ. Cleveland, Ohio 44103 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Clayton Harris, defendant-appellant, appeals from the trial court's decision convicting him of murder. Harris assigns seven 1 errors for our review: After reviewing the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On October 4, 1991, at about 7 am, Belinda Briggs was preparing to leave for work. She looked in on her twenty-two year old daughter, Serita. Serita was scheduled to work the 2pm to 7pm shift at a downtown parking garage and was still in bed. Belinda asked Serita to call and schedule a doctor's appointment for her. Serita agreed and Belinda then left for work. Later that morning at about noon, Belinda received a call from her boyfriend, Clayton Harris, defendant-appellant. Harris had the day off and asked Belinda to lunch. Harris called back around 12:20 pm and told Belinda he was going to pick up Serita in order to assist him with something and that perhaps the three of them could have lunch together. Harris called again at 3:00 pm and said he was having car trouble and obviously could not make it to lunch. He told Belinda he would try to give her a ride home from work. He called again at 4:00 pm to say he could give her a ride. At 4:45 pm, he called and said he was still having car trouble. At 5:45 pm, Harris arrived and took Belinda home. 1 See Appendix. -3- Harris and Belinda spent the evening watching movies. Later that evening, Belinda became concerned when Serita did not come home from work. However, she remembered that Serita stayed out all night on one prior occasion without calling her. Harris left Belinda's house at 11:00 pm, saying he was going home. Belinda went to bed about 11:30 pm. Harris called Belinda the following morning at 7:00 am to say that he was at the airport dropping off friends and would be over shortly. Belinda checked Serita's room and noticed that she still had not come home. Harris arrived at Belinda's house and began helping her clean up the house around 9:30 am. That afternoon, when Serita had still not arrived home, Belinda told Harris she was really getting worried. Harris suggested that Serita might have eloped with her boyfriend, Terrance Riddle. Belinda then started toward Serita's room announcing her intention to look and see if Serita had packed some clothes. Harris dissuaded her from going into the room by reminding her that she would be late for her weekly bowling league. Harris drove Belinda to the bowling alley. He left at around 4:15 pm in order to prepare to go to work. He was scheduled to work the 6 pm to 6 am shift at his job after having been off the previous day. Belinda rode home with one of her friends, Shirley Wallace, arriving at about 6:30 pm. Serita had still not arrived home. Belinda went to Wallace's house. Wallace convinced Belinda to file a missing person report on Serita. When Belinda made the report to police, the police asked her what Serita was wearing when she -4- disappeared. Because Serita was in bed when Belinda left for work the previous day, she could not be sure what Serita had been wearing, so she decided to return home and search Serita's closet for clues. When she and Wallace went back to the house and searched Serita's room, they were unable to find her work uniform as well as several other outfits. Also missing was the purse Serita normally carried. Thereafter, Belinda and Wallace returned to Wallace's home. The pair saw a report on the 10 o'clock news that police had discovered the body of a female. The body carried no identification. The description matched Serita's and Belinda became upset. Wallace called police and was told someone would have to come to the morgue and view the body. Unable to go herself, Belinda asked Wallace to go to the morgue for her. At Belinda's request, Wallace called Harris at work and told him that she was on her way to the morgue to identify a body which might be Serita. Harris said, in an agitated tone, "I'm at work. What do you want me to do?" While Wallace was gone, Belinda called Harris at work and told him she was upset and needed some support. She received the same agitated reaction. When she asked him about it, Harris replied that he did not like getting phone calls at work. Wallace identified the body as Serita. Police had found the body lying face down in an alley at approximately 5:00 am that morning. That evening, Belinda spent the night at the Wallace home. Harris left around 4:00 am and returned to Belinda's home for the night. He came back to the Wallace home the following day -5- around noon. When news crews asked for a picture of Serita, Harris returned to Belinda's home to locate one. Several hours later, Harris phoned the Wallace home and said that he had found Serita's purse in a closet in an unused bedroom. The purse contained Serita's uncashed check, her keys, bus pass, and other personal items. Later that week, when Belinda returned to the house to locate a dress for Serita's funeral, she found Serita's work uniform and the other missing clothes draped over a bar in Serita's closet. On October 22, 1991, after interviewing him about the murder, police arrested Clayton Harris. Harris was released from custody three days later without being charged. On December 10, 1992, a grand jury indicted Harris for murder and a capias was issued for his arrest. His trial commenced on November 1, 1993. The coroner testified that Serita died from ligature strangulation. A police investigation revealed that two green carpet fibers found on Serita's clothing and a green fiber from the trunk mat of Harris' car matched green carpet from Harris' home. In his interview with the police, Harris denied seeing Serita on the day of her disappearance. Serita's next door neighbor recalled seeing Serita leave the home she shared with her mother, Belinda, and walk to the bus stop shortly before 1:00 pm on October 4, 1991. The driver of the RTA bus remembered picking Serita up at the bus stop near her home. According to the driver, Serita exited the bus in the downtown area. However, Serita never made it to work. -6- Serita's best friend, Keisha Hudson, and Keisha's mother, Rhonda, both testified that, a few days before her disappearance, Serita told them she hated Harris and had overheard him talking to another woman on the phone. Serita said she had confronted Harris and threatened to tell her mother about Harris' infidelity. After a jury trial, Harris was convicted of murder. This appeal followed. In his first assignment of error, Harris argues that his right to a speedy trial was violated because he was not brought to trial within 270 days of his arrest. R.C. 2945.71(C)(2) provides that a person against whom a charge of felony is pending shall be brought to trial within two hundred seventy days after his arrest. (Emphasis added). Although Harris was originally arrested on October 22, 1991, he was released October 25, 1991 without being charged. The plain language of R.C. 2945.71(C)(2) indicates that the speedy trial time clock only runs during the time charges are pending against the accused. When he was released, Harris had not been indicted. Although his case was presented to the prosecutor, the prosecutor opted not to issue charges against him. The speedy time clock did not run during the time no charges were pending against Harris. See State v. Montgomery (1990), 10th Dist. No. 89AP-1355. Harris was not rearrested until December 14, 1992. Because the date of arrest is not counted when calculating the speedy trial time, the clock started to run on December 15, 1992. In a July 16, 1993 journal entry, Harris signed a 120 day speedy trial waiver. -7- From December 15, 1992 until July 16, 1993 was 214 days. Even if Harris' three days in jail from October 1991 are counted as nine days and added to the 214 days, only 223 days of the speedy trial clock had run at the time Harris executed the 120 day waiver. On September 16, 1993, Harris signed another speedy trial waiver to December 15, 1993. Harris' trial began on November 1, 1993, well before the December 15, 1993 deadline. Harris' first assignment of error is without merit. Harris' second assignment of error pertains to alleged errors in jury selection. In its initial instructions to the jury, the trial court stated that the state had to prove the charges against Harris "by a reasonable doubt." Harris argues that the trial court's misstatement constituted reversible error. We disagree. When reviewing alleged errors in jury instructions, the instructions should be evaluated as a whole. State v. Smelcer (1993), 89 Ohio App.3d 115,126. Our review of the record reveals that the trial court correctly stated the state's burden of proof in its final instructions to the jury. We find that any error in the trial court's initial instructions was cured by the final jury instructions. We next turn to Harris' claim that the trial court improperly prevented him from asking potential jurors whether they had any bias toward poor people. It is within the trial court's discretion to reasonably limit the scope of voir dire. State v. Swanson (1984), 16 Ohio App.3d 375. The trial court did not allow the general question about whether the juror held anything against -8- Harris because he was too poor to hire a lawyer but authorized Harris to ask if the juror had any bias against the public defender's office. The court's actions reflected an effort to limit the scope of voir dire to the particular circumstances of the case at hand. We find that the trial court acted properly in disallowing the challenged questions. We also find no merit to Harris' claim that the State used one of its peremptory challenges to improperly exclude a black juror. In order to establish that a prosecutor has used peremptory challenges in violation of the Equal Protection Clause, the defendant must first make a prima facie showing that the prosecutor has used the challenges on the basis of race. Once such a showing is made, the burden shifts to the prosecutor to articulate a race- neutral explanation for striking the jurors. Thereafter, the court must determine whether the defendant has successfully proved purposeful discrimination. Hernandez v. New York (1991), 111 S.Ct. 1859,1866. (citations omitted.) Harris argues that the state used its peremptory challenge to exclude a black juror. At trial, the state argued that the juror was excused because of a professed lack of faith in the judicial system. Hernandez held that, once a race-neutral explanation for excusing a juror is given, the preliminary issue of whether the defendant made a prima facie showing of racial motivation becomes moot. Id. A neutral explanation is an explanation that is based on something other than the juror's race. Id. The state's explanation was based not on the juror's race, but on her lack of -9- faith in the judicial system. We find that the state met its burden of showing a race-neutral explanation for excusing the juror. Harris' second assignment of error is without merit. Harris next argues the trial court erred in failing to suppress testimony about the oral statement he gave to police. Harris concedes that he was advised of his Miranda rights, that he understood them, and that he was not coerced into making his statement. However, he argues that the police failed to advise him of his right to stop answering questions at any time. A suspect's statement to police is admissible if it was given voluntarily. When deciding whether a statement was voluntary, the court must examine the totality of the circumstances. State v. Spinks (1992), 79 Ohio App.3d 720,727. Detective Kovacic testified that Harris was fully advised of his rights at the time of his interview. In addition, he testified that a copy of the Miranda rights was prominently posted in the interview room. According to the testimony, Harris voluntarily waived his rights and gave a statement to police. In his brief before this court, Harris argues that his interview statements should have been suppressed because he was not advised of his right to stop answering questions at any time. In his testimony at trial, Kovacic stated that Harris was advised of his rights. When asked to repeat what he said to Harris, the officer did not specifically say that he advised Harris of his right to stop answering questions at any time. He noted, however, that he read Harris the standard Miranda warning and that a copy of the warning was posted in the interview room. Under the -10- circumstances, we find that Harris was adequately informed of his Miranda rights and that his waiver of those rights was voluntary. Consequently, the trial court did not err in admitting evidence of Harris' interview statements. In his fourth assignment of error, Harris argues comments by the trial court during his closing argument denied him a fair trial. During closing argument, Harris' trial counsel attempted to suggest to the jury that the murder was committed by the victim's boyfriend, Terrance Riddle. The prosecutor objected and the trial court sustained the objection, instructing the jury that "Mr. Riddle is not an issue in this case and the jury is to disregard Mr. Riddle." Harris argues that the trial court's comments constituted an improper suggestion of the court's opinion of the facts in issue. We disagree. In closing argument, an attorney may properly refer to facts admitted into evidence in the case. Our review of the record reveals that there was testimony about Riddle as a possible suspect in Serita Briggs' murder. Consequently, the court erred in stating that Riddle was not an issue in the case. However, we find that the statement does not rise to the level of reversible error. In order to be reversible, error must be prejudicial to the appellant. State v. Dolce (1993), 92 Ohio App.3d 687. Crim.R. 52(A) provides that any error which does not affect substantial rights shall be disregarded. Though Harris argues that the trial court's comment suggested an opinion on the issues in the case, it is our view that such an interpretation is unreasonable. The -11- ultimate issue in the case was whether Harris committed the murder and the court's comment suggested no opinion on this issue. Furthermore, the jurors were instructed that the closing arguments of counsel were not evidence and that any comments made by the judge which might be construed to intimate his opinion on the case should be disregarded. Under the circumstances, we find no prejudicial error that would justify a reversal of Harris' conviction. Harris next argues that the trial court erred in admitting testimony by Keisha and Rhonda Hudson about statements made by Serita about Harris. The trial court admitted the statements as expressions of mental or emotional condition. Evid.R. 803(3) provides that statements of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) are not excluded by the hearsay rule. In deciding to admit the testimony, the trial court only allowed testimony about Serita's feelings about Harris and her intent to tell her mother about Harris' affair. Harris argues that the statements should have been excluded as irrelevant. We disagree. The relationship between Harris and Serita was clearly relevant to determining whether he killed her. Though Harris argues that the identification of Serita's killer was the main issue of the case, we find that, because only Harris was charged with the crime, the issue was whether Harris killed her. Under the circumstances, information that Harris may have had conflicts with -12- Serita is clearly relevant when assessing whether he was guilty of her murder. We find that the trial court properly admitted testimony about Serita's pre-crime comments about Harris. Harris also attacks the sufficiency of the evidence presented to sustain his conviction. When reviewing the sufficiency of evidence, we must follow the standard of review set forth in State v. Jenks (1991), 61 Ohio St.3d 259. The relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. *** The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Id. at 273. Harris points to the circumstantial nature of the evidence presented at trial and to the lack of direct evidence that he committed the murder. However, as the Supreme Court held in Jenks, circumstantial evidence possesses the same probative value as direct evidence. Id. at 272. The fact that much of the state's evidence against Harris was circumstantial does not render such evidence insufficient as a matter of law. Because we find that, based on the evidence presented, a reasonable factfinder could have found Harris guilty beyond a reasonable doubt, we overrule Harris' sixth assignment of error. Finally, Harris argues that his conviction is against the weight of the evidence. We disagree. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and -13- all reasonable inferences, and considering the credibility of witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172,175. The state presented evidence that fibers found on Serita's clothing matched carpet fibers from Harris' home. Although he claimed to have been working on his car all day, a witness placed Harris' car in Serita's driveway just 10 minutes after she left home. Several witnesses who saw Serita just before she disappeared testified that she was carrying her purse. A search of the home by Belinda Briggs failed to locate Serita's purse. However, on the day after the victim's body was identified, Harris "found" the purse in a bedroom closet after spending extended periods of time alone in the house. The evidence also showed that, shortly before she disappeared, Serita confronted Harris about seeing another woman behind Belinda Briggs' back and had threatened to expose the affair. We find that, under the circumstances, the jury could reasonably conclude that Harris was guilty of the murder of Serita Briggs. 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 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. JAMES D. SWEENEY, P.J., and NUGENT, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -15- APPENDIX I. THE APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL IN VIOLATION OF ORC 2945.71, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION. II. THE APPELLANT WAS DENIED A FAIR TRIAL WHEN THE COURT COMMITTED SEVERAL ERRORS IN THE JURY SELECTION PROCESS IN VIOLATION OF DUE PROCESS AND EQUAL PROTECTION PURSUANT TO ARTICLE I, SECTION 16 AND 2 OF THE OHIO CONSTITUTION AND THE 5TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION. III. THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION TO SUPPRESS HIS ORAL STATEMENT IN VIOLATION OF THE FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION. IV. THE TRIAL COURT'S INSTRUCTION TO DISREGARD THE DEFENSE THEORY OF THE CASE IS AN ABUSE OF DISCRETION AND DEPRIVED THE APPELLANT OF A FAIR TRIAL, DUE PROCESS AND EQUAL PROTECTION UNDER THE OHIO AND U.S. CONSTITUTIONS. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED EVIDENCE OF THE VICTIM'S PRE- CRIME FEAR OF THE APPELLANT IN VIOLATION OF THE OHIO RULES OF EVIDENCE, DUE PROCESS AND THE RIGHT TO CONFRONTATION UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 16 AND 10 OF THE OHIO CONSTITUTION. VI. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION. .