COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66770 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JEFFREY D. MANN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-295500 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: EDWARD M. WALSH (#0009754) PETER J. GAUTHIER (#0055774) Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: TERRY H. GILBERT (#0021948) GORDON S. FRIEDMAN (#0021946) 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - SPELLACY, P.J.: Jeffrey Mann appeals his conviction for murder, in violation of R.C. 2903.02, and raises eight assignments of error: I. IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO ADMIT INTO EVIDENCE THE TESTIMONY OF ALLEGED EXPERTS KAREN ARNOFF, BEN MCPEEK AND RANDALL LOCKWOOD CONCERNING TESTS CONDUCTED ON MACK, WHICH DID NOT MEET THE REQUIREMENTS OF EVIDENCE RULES 702, 402, AND 403. II. IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO ADMIT INTO EVIDENCE THE TESTIMONY OF PATRICIA TIPPIE, DEBRA STEIN, LAURENE CHLOPECKI AND ANGEL LYNN DRAGICH CONCERNING THE ALLEGED SPOUSAL ABUSE, WHICH DID NOT CONSTITUTE A SIMILAR ACT UNDER OHIO REVISED CODE SEC. 2945.59 OR EVID.R. 404(B). III. THE CONVICTION OF APPELLANT FOR MURDER MUST BE OVERRULED AS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL. V. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT EXCLUDED THE TESTIMONY OF ATTORNEY WILLIAM CARLIN, WHICH WAS OUTSIDE THE SCOPE OF PRIVILEGED COMMUNICATIONS. VI. THE TRIAL COURT'S JURY INSTRUCTION ON THE CAUSATION REQUIRED FOR A MURDER CONVICTION UNDER OHIO REVISED CODE SEC. 2903.22 [sic] WAS IMPROPER AND MISLEADING AND THUS APPELLANT MUST BE GRANTED A NEW TRIAL. VII. THE TRIAL COURT'S ADMISSION OF THE CORONER'S DETERMINATION OF MANNER OF DEATH WAS PREJUDICIAL ERROR AND THUS APPELLANT'S CONVICTION MUST BE OVERTURNED. VIII. THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO SUPPRESS ORAL STATEMENTS WAS A DENIAL OF APPELLANT'S CONSTITUTIONAL RIGHTS AND THUS APPELLANT'S CONVICTION MUST BE OVERTURNED. - 3 - I. In 1985 Mann obtained a pit bull puppy named Mack. In 1987 Mann and Angela Kaplan met and began living together. In 1988 the couple moved from Arizona to Cleveland, Ohio. In the early- morning hours of September 2, 1992, Kaplan bled to death after Mack attacked her. On September 1, 1992, at 10:00 p.m., Joyce Ragels, Kaplan's mother, telephoned Kaplan, who answered the telephone sobbing and stated, "I don't know how much longer I can take this sh__." Kaplan then stated that she had to hang up but that she would call back. On September 2, 1992, at 1:45 a.m., a neighbor saw Kaplan being dropped off by a car and stumble once as she walked to her side door. At 4:07 a.m. Mann telephoned 911 and told a dispatcher that Kaplan had crawled home after being attacked by a dog while on a walk. Mann also stated that Kaplan had not been taking her seizure medication and that she was involved in a dispute over the custody of her two children with her ex-husband. The 911 dispatcher testified that Mann sounded confused and slurred his words. When paramedics and police officers arrived they found Kaplan's nude body covered with a sheet lying on a couch in the living room. According to the paramedics, Kaplan had been dead for some time: her body was cold, her blood was drying and coagulating, and her jaw and joints were stiff. The bottom of a broken drinking - 4 - glass sat on a coffee table next to the couch. In the master bedroom, located on the ground floor, blood covered the bedding, saturated the carpet, and was splattered on the walls. Shards of glass from the broken drinking glass were found on the bed. A bowl and bloody towel lay on the floor. When police officers asked Mann what had happened, he told them that Kaplan had come home after being attacked by a dog while on a walk. Mann also stated that he fell asleep after Kaplan refused to go to the hospital and when he awoke four hours later Kaplan had stopped breathing so he telephoned 911. Mann eventually acknowledged that a dog was locked in an upstairs bedroom. When one of the officers jiggled the bedroom door handle, Mack barked and charged the door. Mann's clothing was covered in blood and he had a wound on his forehead. Asked about the wound, Mann stated that he had cut himself when he broke a glass while getting Kaplan a drink of water. A paramedic testified that Mann appeared intoxicated. A police officer who took Mann to a hospital testified that Mann repeated his explanation of what happened to Kaplan and expressed concern about Mack's fate. An emergency-room nurse testified that Mann told her that he cut his head chasing a dog and then stated that he cut it on a broken drinking glass. The nurse also testified that Mann mentioned that there had been an argument. The emergency-room doctor testified that Mann stated that the glass had not broken when he cut his forehead. - 5 - A dog warden removed Mack from the upstairs bedroom. During this struggle Mack suffered a cut lip, so the dog warden took him to an emergency animal clinic. The veterinarian who attended to Mack testified that he weighed seventy-two pounds. Both the veterinarian and the dog warden testified that the only blood on Mack came from the cut to his lip. At some point after 8:00 a.m., Detectives Michaelene Taliano and Samuel Reese interviewed Mann at police headquarters. Initially, Mann told them that Kaplan crawled home after being attacked by a dog while on a walk. When the detectives pointed out that the evidence did not support this and that something had obviously happened in the bedroom, Mann stated that another dog had broken in and attacked Kaplan. When the detectives pointed out the unlikelihood of this, Mann admitted that Mack had attacked Kaplan. Mann then told the detectives that he woke up when he heard Kaplan screaming and saw Mack attacking her. Mann stated that he then fell back to sleep and when he awoke Kaplan was on the floor. Mann further stated that Kaplan refused to let him call an ambulance because she feared it would create problems with her custody dispute so he moved her to the living room to prevent her from going into shock. He went on to state that he placed a bowl under Kaplan so that she could urinate and, when she was unable to do so and began choking, he telephoned 911. He also stated that he had cut his head on a drinking glass but that the drinking glass had not broken. - 6 - Dr. Carlos Santoscoy, an assistant coroner, testified that Kaplan had three hundred fifty-one wounds: seventy-one puncture wounds and two hundred eighty contusion and abrasion wounds. Her left-upper extremity had forty-seven puncture wounds and one hundred fifty abrasion and contusion wounds. These wounds resulted in the removal of muscle and blood vessels, leaving a large gaping hole and tooth marks on the bone. Kaplan's right-upper extremity had twenty-four puncture wounds and one hundred ten contusion and abrasion wounds. Her trunk had twelve wounds. There were ten bruises on her left thigh and nine bruises on her right thigh. There were no injuries on her face or hands. Santoscoy opined that Kaplan, who weighed ninety pounds, lost consciousness within minutes and died within half an hour. Blood tests revealed several drugs at low therapeutic levels: Meprobamate, a tranquilizer, acetaminophen, commonly known as Tylenol, Valium, a tranquilizer, and Darvon, a painkiller. An inactive form of marijuana was also detected. No alcohol was found. Santoscoy testified that no conclusion concerning Kaplan's mental state or level of consciousness could be drawn from these results. Dr. Elizabeth Robinson, a forensic dentist, testified that Kaplan sustained approximately fifty bites to her left arm and twenty-five bites to her right arm. Robinson also matched the tooth marks with Mack's bite. - 7 - On November 20, 1992, Dr. Elizabeth Balraj, county coroner, issued a coroner's verdict certifying the manner of death as "violence of undetermined origin." On March 5, 1993, she amended this conclusion to homicide. Balraj testified that she amended the coroner's verdict because she concluded that Kaplan had been conscious during the attack yet had not suffered defensive wounds while sustaining painful injuries. Balraj stated that she determined that Kaplan had been conscious during the attack because dogs bite the faces of unconscious victims and there was no injury to Kaplan's face. Balraj also stated that the drugs found in Kaplan's system would not have rendered her unconscious. Dr. Randall Lockwood, vice president for training initiatives with the Humane Society of the United States, testified that he had studied ninety-nine fatal dog attacks since 1986, sixty to sixty- five involving pit bulls. He stated that in only nine cases, all of which involved more than one dog, was the victim between the ages of nine and sixty-five. In three cases the attack may have been caused by the victim's suffering a seizure. These three cases involved at least five dogs. Lockwood further testified that pit bulls generally bite and hold on and that multiple bites occur where there have been many dogs or the dog has been interrupted. He also stated that pit bulls bond most strongly with one master. Karen Arnoff testified that she has worked as a full-time dog trainer treating dog behavior problems for twenty-four years; attended over seventy seminars; written newspaper and magazine - 8 - articles; and given seminars, lectures, and workshops to various kennel clubs, veterinarian groups, and humane societies. During the nine months before the trial, she had evaluated over one hundred aggressive dogs. Arnoff observed Mack six times from November 1992 until July 1993. She presented Mack with an attack sleeve and conditioned him to respond to a clicker. She opined that Mack's temperament was incredibly stable and that he was easily trained. During the defense's case, Arnoff, the state's witness, was recalled and acknowledged that she had a financial stake in the outcome of the trial because a guilty verdict would provide a promotional benefit to her business. Benjamin McPeek, a dog trainer who specializes in training law-enforcement dogs, observed Mack twice in July 1993. McPeek opined that Mack had received some form of attack-dog training based on his reaction to an attack sleeve. He further opined that Arnoff's presentation of an attack sleeve to Mack prior to his observing Mack did not alter his evaluation. He went on to state that Mack's confinement in the kennel would not have made him more prone to attack the attack sleeve. James Dickard, a dog trainer with experience training dogs, including pit bulls, for protection training, testified that kennel stress destabilizes a dog's temperament. He opined that he was unable to determine whether Mack is attack trained. He stated that Mack's attacking an attack sleeve was insignificant because even - 9 - untrained pit bulls will attack an attack sleeve. He also stated that a dog must be highly trained to attack on command. Neighbors testified that they rarely went into their backyard when Mack was outside because he would lunge at the fence. Another neighbor testified that he thinks he once saw Mann sic Mack onto a tree. The neighbor also stated that on several occasions he saw Mack attacking the tree and obey when Mann called him off. Laurene Chlopecki, a friend of Kaplan's, testified that once when she, Kaplan, and Mack were in the backyard, Kaplan sicced Mack on a tree, called him off, sicced him on the tree again, and then called him off again. In June 1991, Dr. Michael Hickey began treating Kaplan after she sustained a tail-bone injury during an assault by her ex- husband. Hickey saw Kaplan regularly from June 1991 until August 1992. He testified that he saw no other bruises on Kaplan except for a bruise under her right eye sustained in a car accident in May 1992. Patricia Tippie, who lived a two-minute walk from Kaplan and Mann's house, testified that in November 1991 Kaplan visited her with a swollen, red face and a black eye. Tippie stated that Kaplan, crying and upset, told her that she was tired of Mann beating her up. Tippie also testified that during fall 1991 Kaplan had bruises on her arms on two occasions and in December 1991 Kaplan had a swollen lip. Three other friends also testified about seeing bruises on Kaplan. Debra Stein testified that Kaplan had - 10 - bruises two or three times and a black eye once. Angel Dragich testified that Kaplan had a black eye once and a swollen lip on another occasion. Chlopecki testified that in spring 1992 Kaplan had bruises on her arm, a swollen cheek, and a black eye. Chlopecki testified that the bruises she saw did not appear to have been caused by a car accident and that Kaplan had been evasive about their cause. Chlopecki also stated that she had urged Kaplan to leave Mann. In April 1991 Kaplan took her two children to Arizona. John Zoller, guardian ad litem for the children, testified that Kaplan went to Arizona because her relationship with Mann had collapsed. In May 1992 Kaplan returned to Cleveland after her children were removed from Arizona and placed with their paternal grandparents in Michigan. Richard Delsanno, Mann's cousin, testified that in June 1992 Mann and Kaplan told him that they were planning to get married and asked his wife to make a wedding dress for Kaplan. He also testified that every time Kaplan returned from Michigan she would be covered with bruises as a result of assaults by her ex-husband. He further stated that Mack was more Kaplan's dog than Mann's dog. The defense maintained that Mack attacked Kaplan because she was having a seizure. Ragels testified that Kaplan had a seizure when she was seventeen years old and another in May 1992 while she was in Arizona. Michael Mann, Mann's brother, testified that he had seen Kaplan have a seizure in spring or summer 1992 and that - 11 - she had told him not to call an ambulance because she thought it would hurt her in her custody dispute. Dr. Michael Devereaux, a neurologist, opined that Kaplan had epilepsy, which he defined as a recurrent episode of seizures. He further opined that there was no reliable way to determine from the autopsy whether a seizure had occurred. II. In his first assignment of error, Mann contends the trial court erred in admitting Arnoff's, McPeek's, and Lockwood's expert testimony. We review the admission of expert testimony for abuse of discretion. Wightman v. Consol. Rail Corp. (1994), 94 Ohio App.3d 389, 402. A court abuses its discretion when, in addition to making an error of law or judgment, it acts with an unreasonable, arbitrary, or unconscionable attitude. State v. Montgomery (1991), 61 Ohio St.3d 410, 413. At the time of trial, Evid.R. 702 provided: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. First, Mann argues Arnoff was unqualified to testify as an expert witness because she lacked experience with attack training and formal education and she was biased. We find no abuse of - 12 - discretion in the trial court's qualification of Arnoff as an expert. Arnoff's lack of experience with attack training did not preclude her from testifying about Mack's temperament and ability to be trained and formal education is not a prerequisite for qualification as an expert. Further, biasness does not affect an expert's qualifications. Second, Mann argues changed conditions rendered Arnoff's and McPeek's testimony unreliable. When Arnoff first observed Mack, two months after Kaplan's death, he had lost thirty pounds and was suffering from kennel stress. When McPeek observed Mack ten months after Kaplan's death, Arnoff had already presented Mack with an attack sleeve and conditioned him to respond to a clicker. Mann further asserts that McPeek's testimony was unreliable because McPeek was unable to point to anything in the literature showing a correlation between biting an attack sleeve and attack training, find a verbal command, or determine Mack's level of attack training. We find no abuse of discretion in the trial court's conclusion that these factors did not render Arnoff's and McPeek's testimony unreliable. Third, Mann argues Lockwood's testimony should have been excluded under Evid.R. 402 and 403. Evid.R. 402 precludes the admission of irrelevant evidence. Evid.R. 403 precludes, among other things, the admission of relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice." - 13 - Mann asserts that Lockwood's testimony was irrelevant because he did not observe Mack or testify about the circumstances of Kaplan's death. Mann further argues that even if Lockwood's testimony was relevant, the risk the jury would infer guilt from the unusual circumstances substantially outweighed its probative value. We find no abuse of discretion in the trial court's admission of this testimony. Accordingly, Mann's first assignment of error is not well taken. III. In his second assignment of error, Mann contends the trial court erred when it admitted Tippie's, Stein's, Chlopecki's, and Dragich's testimony concerning physical abuse. Mann argues the testimony about Kaplan's bruises and Tippie's testimony that Kaplan stated she was tired of Mann beating her constitute inadmissible other-acts evidence under Evid.R. 404(B) and R.C. 2945.59. Mann, however, failed to object on this ground. Consequently, he waived his right to raise this argument. State v. Williams (1977), 51 Ohio St.2d. 112, paragraph one of the syllabus; see, also, Evid.R. 103(A)(1). Mann also argues that Tippie's testimony that Kaplan stated she was tired of Mann beating her constitutes inadmissible hearsay. Evid.R. 803(2) provides: The following are not excluded by the hearsay rule *** (2) excited utterance. A statement - 14 - relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. We find no abuse of discretion by the trial court in concluding Kaplan's statement was an excited utterance. Tippie testified that Kaplan, crying and upset, made the statement minutes after being beaten. Accordingly, Mann's second assignment of error is not well taken. IV. In his third assignment of error, Mann contends the verdict is against the manifest weight of the evidence. "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. When determining whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: the entire record, weighs the evidence and all reasonable inferences, considers the credibil- ity 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. State v. Martin (1983), 20 Ohio App.3d 172, 175. A reviewing court's "discretionary power to grant a new trial should be - 15 - exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. Reviewing the entire record, we conclude the jury could properly find Mann guilty of murder. Accordingly, Mann's third assignment of error is not well taken. V. In his fourth assignment of error, Mann contends the trial court erred when it denied his motion for acquittal made under Crim.R. 29(A). "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. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Supreme Court held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed.2d 560, followed.) - 16 - R.C. 2903.02(A) provides "[n]o person shall purposely cause the death of another." After reviewing the evidence in a light most favorable for the state, we find that a reasonable trier of fact could have properly found all the essential elements of murder. The pattern of wounds, Mack's attack training, and Mann's lying support the conclusion that Mann used Mack to attack Kaplan with the intent to cause her death and that the attack was not an accident. Accordingly, Mann's fourth assignment of error is not well taken. VI. In his fifth assignment of error, Mann contends the trial court erred when it excluded William Carlin's testimony based on the attorney-client privilege. Voir dire examination of Carlin revealed that he represented Kaplan in her custody dispute with her ex-husband. Carlin testified that Kaplan retained him in mid-May 1992 and that they met many times. Carlin further testified that Mann was present for, and played an active role in, all but two of these meetings. Mann waived his right to raise as error the exclusion of Carlin's testimony by failing to proffer what that testimony would have been. Under Evid.R. 103(A)(2), error may not be predicated on the exclusion of evidence unless "the substance of the evidence was made known to the court by offer or was apparent from the context - 17 - within which questions were asked." The purported privileged nature of the evidence does not abrogate this requirement. Thomas v. Corsi (Sept. 24, 1987), Cuyahoga App. No. 53376, unreported, page 8; State v. Williams (July 3, 1975), Cuyahoga App. No. 33904, unreported. Accordingly, Mann's fifth assignment of error is not well taken. VII. In his sixth assignment of error, Mann contends the trial court improperly instructed the jury on causation. The trial court instructed the jury, in part, as follows: In the indictment in this case, the defendant, Jeffrey D. Mann, is charged with murder, in violation of Revised Code 2903.02. Murder is causing the death of another purposely. Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 2nd day of September, 1993, and in Cuyahoga County, Ohio, the defendant purposely caused the death of Angela Kaplan. Purpose to cause death is an essential element of the crime of murder. A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the defendant a specific intention to kill Angela Kaplan. Purpose is a decision of the mind to do an act with a conscious objective of producing a specific result. To do an act purposely is to do it intentionally and not accidentally. - 18 - Purpose and intent mean the same thing. The purpose with which a person does an act is known only to himself, unless he expresses it to others or indicates it by his conduct. The purpose with which a person does an act or brings about a result is determined from the manner in which it is done, the means used, if any, and all the other facts and circumstances in evidence. If a wound is inflicted upon a person in a manner calculated to destroy life, the purpose to kill may be inferred. Proximate cause is an essential element of the offense of murder. Proximate cause is an act or omission which in a natural and continuous sequence directly produces the death and without which it would not have occurred. Proximate cause exists when the death is the natural and probable result of the act or omission. To constitute murder, there must be a causing of the death of another by the defendant and there must be a specific purpose to cause the death of Angela Kaplan existing in the mind of the defendant at the time of the act. (Tr. 2350-2351). A criminal defendant is entitled to have the jury receive a complete and accurate instruction on all the issues raised by the evidence. State v. Sneed (1992), 63 Ohio St.3d 3, 9. We review jury instructions as a whole, however, and not in isolation. State v. Price (1979), 60 Ohio St.2d 136, paragraph four of the syllabus. Mann argues that the causation portion of the jury instruction undercut the required purpose mens rea. First, Mann asserts that State v. Jacks (1989), 63 Ohio App.3d 200, 204-205, invalidated this definition of causation in murder instructions. We disagree. - 19 - Jacks found improper a definition of causation that included a negligence-type instruction on foreseeability. Here, the definition of causation, essentially verbatim the murder instruction for causation in 4 Ohio Jury Instructions (1993) Section 503.02 and 409.55, did not include the negligence-type foreseeability instruction found in Jacks. Second, Mann argues the use of the term "omission" was improper. Again, we disagree. The jury instruction, viewed as a whole, did not undercut the required purpose mens rea. Accordingly, Mann's sixth assignment of error is not well taken. VIII. In his seventh assignment of error, Mann contends the trial court erred when it admitted the amended coroner's verdict and Balraj's testimony explaining why she ruled Kaplan's death a homicide. Before trial, the trial court ruled that Arnoff was unqualified to opine whether Mack had been attack trained. Mann argues the amended coroner's verdict was inadmissible because it was based on Arnoff's opinion that Mack had been attacked trained. During voir dire examination Balraj testified that the November 20, 1992, coroner's verdict was a preliminary ruling made during the investigation so that a death certificate could be issued and she amended it when the investigation ended. Balraj further testified - 20 - that she would have ruled Kaplan's death a homicide even if Arnoff had not told her that Mack had attacked an attack sleeve. We find no abuse of discretion in the trial court's conclusion that Balraj did not amend the coroner's verdict based on Arnoff's unqualified opinion. Mann also argues that the amended coroner's verdict was inadmissible because it was based on the opinion of another. A coroner's verdict, however, may be based on the opinion of others. See R.C. 313.17. Mann, citing State v. Cousin (1982), 5 Ohio App.3d 32, further argues that Balraj's exceeded the scope of her expertise by going beyond physiological and anatomical findings when she explained why she ruled Kaplan's death a homicide. State ex rel. Blair v. Balraj (1994), 69 Ohio St.3d 310, 312, however, stated that "*** Cousin is wrong insofar as it holds, or appears to hold, that a coroner is limited to describing only physical or physiological facts." Finally, Mann argues that Balraj testified to ultimate issues by explaining why she ruled Kaplan's death a homicide. A coroner's testimony about the manner of death, however, may not be excluded on the grounds that it goes to ultimate issues. State v. Simpson (Sept. 30, 1994), Lake App. No. 93-L-014, unreported; State v. Harrison (May 12, 1993), Hamilton App. No. C-920422, unreported; see, also, Evid.R. 703. Accordingly, Mann's seventh assignment of error is not well taken. - 21 - IX. In his eighth assignment of error, Mann contends the trial court erred when it denied his motion to suppress statements he made to Zedella, Kilbane, Conrad, Taliano, and Reese. The suppression hearing revealed the following: Police Officer Michael Zedella, who arrived on the scene shortly after the paramedics, asked Mann what had happened and, based on Mann's response, read him rights under Miranda v. Arizona (1966), 384 U.S. 436. Zedella described Mann as subdued and stunned. Police Officer Kevin Kilbane arrived several minutes after Zedella. Kilbane, unaware that Zedella had already read Mann his Miranda rights, also asked Mann what had happened. Kilbane testified that he did not read Mann his Miranda rights because he had not considered him a suspect. Kilbane further testified that Mann did not appear to be under the influence of drugs or alcohol. Police Officer Joseph Conrad read Mann his Miranda rights through the plexiglass barrier in a police car before taking him to a hospital. Conrad testified that Mann acknowledged that he understood the rights. Conrad further testified that although Mann was not asked any questions he made several statements during the drive to the hospital. Detectives Michaelene Taliano and Samuel Reese interviewed Mann at approximately 9:00 a.m. Taliano testified that Mann agreed to talk after being read his Miranda rights. She further testified - 22 - that the interview took no more than forty-five minutes and that although Mann was soft spoken and spoke slowly he did not slur his words. She went on to testify that she remembers Mann asking for a cup of coffee and does not remember getting it for him. Mann testified that the evening before Kaplan died he took multiple doses of darvocet, soma, and valium. He stated that he was under the influence of these drugs when he spoke with the police officers and is unable to recall the interview with Taliano and Reese. He does recall being returned to his cell after Reese found him too "loaded" to be interviewed. First, Mann argues that Kilbane and Conrad failed to comply with Arizona v. Miranda (1966), 384 U.S. 436: Kilbane by failing to give Miranda warnings, Conrad by giving Miranda warnings through the plexiglass barrier in the police car, preventing him from hearing them. Zedella, however, advised Mann of his Miranda rights immediately before Kilbane questioned him. Conrad did not question Mann. Statements not made in response to questioning are admissible. State v. Mills (1992), 62 Ohio St.3d 357, 366. Second, Mann argues that his waiver of his Miranda rights was invalid because he was intoxicated and Taliano and Reese used coercion. "At a suppression hearing, the strength of the evidence and the credibility of the witnesses are to be determined by the trial court." State v. Slagle (1992), 65 Ohio St.3d 597, 600. A waiver of Miranda rights must be made voluntarily, knowingly, and - 23 - intelligently. Miranda, 384 U.S. at 475. This creates a two-part analysis. Moran v. Burbine (1986), 475 U.S. 410, 420, held that: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or decep- tion. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. In State v. Dailey (1990), 53 Ohio St.3d 88, paragraph two of the syllabus, the court held that: A suspect's decision to waive his Fifth Amendment privilege against compulsory self-incrimination is made voluntarily absent evidence that his will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct. (Colorado v. Spring [1987], 479 U.S. 564, 574, followed.) We find that, under the totality of the circumstances, Mann voluntarily waived his Miranda rights. There is no evidence of police coercion. We further find that Mann knowingly and intelligently waived his Miranda rights. Although Mann's testimony conflicted with that of the police officers, the trial court could properly choose to believe the police officers. Accordingly, Mann's eighth assignment of error is not well taken. Judgment affirmed. - 24 - 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. TERRENCE O'DONNELL, J. and DIANE KARPINSKI, J., CONCUR. LEO M. SPELLACY 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 .