COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66864 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TERRENCE WILLIAMS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-302,222 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN GALLAGHER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 DONALD C. NUGENT, J.: The defendant appellant, Terrence Williams (hereinafter "appellant"), appeals from his convictions for two counts of kidnapping in violation of R.C. 2905.01 and two counts of aggravated robbery in violation of R.C. 2911.01, all of the counts containing a firearm specification; to wit: that Mr. Williams had a firearm on or about his person or under his control while committing the offenses. Appellant appeals his conviction and raises the following assignments of error for our review: I. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO CONDUCT DISCOVERY WITH THE STATE PURSUANT TO CRIMINAL RULE 16 AND FAILED TO CONDUCT ANY INFORMAL DISCOVERY. II. TRIAL COUNSEL WAS INEFFECTIVE AND IT WAS PLAIN ERROR WHEN HE CROSS-EXAMINED A POLICE OFFICER ON THE APPELLANT'S FAILURE TO GIVE HIS ALIBI IN VIOLATION OF DOYLE V. OHIO. III. IT WAS PLAIN ERROR AND INEFFECTIVE ASSISTANCE OF COUNSEL TO ALLOW AND SOLICIT HEARSAY EVIDENCE THAT PREJUDICED THE APPELLANT. IV. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO A MODIFIED HOWARD CHARGE. The facts as adduced at trial are as follows: - 3 - At approximately 9:30 p.m. on September 13, 1993, Steve Johnson (hereinafter "Johnson") and Shawn Yeazel (hereinafter "Yeazel") were driving south on Kinsman Avenue in Johnson's Suzuki Sidekick. At the intersection of Kinsman Avenue and East 130th Street, Johnson exited the vehicle to talk to some young ladies. Yeazel remained in the Sidekick while Johnson kneeled down on the passenger side of the ladies' automobile. As Johnson was talking to the ladies, a man came across the street toward the two vehicles. Yeazel watched from the Sidekick as the man, whom Yeazel recognized as appellant, pulled a gun out of his shirt and put it to Johnson's head. The assailant ordered the ladies to drive away as he pulled Johnson to his feet. The assailant jumped into the back of the convertible Sidekick and ordered Johnson to get in and drive. Johnson's Sidekick did not have a back seat; rather, in place of the back seat was a 40" x 30" stereo speaker. The assailant sat atop this speaker holding the gun at the back of Johnson's and Yeazel's heads. As Johnson began to drive, the assailant ordered Johnson to go across the intersection and stop at the corner. Apparently unable to drive a "stick-shift" vehicle, the assailant ordered another man into the vehicle. As the man tried to climb into the rear of the vehicle, the assailant yelled, "Come on, come on!" Thinking that the assailant was talking to him, Johnson drove off as the man had his foot on the rear tire of the vehicle. The man fell off the back of the vehicle, and Johnson continued to drive. T h e - 4 - assailant kept the gun pointed at the heads of Johnson and Yeazel as they drove around the area of Kinsman and East 130th. Finally, the assailant ordered Johnson to pull over and demanded the two men empty their property on the dash of the automobile. Not satisfied with the amount the two men had, the assailant ordered the men to remove their shoes. The assailant took Yeazel's new Adidas shoes. After taking the shoes, assailant ordered Johnson to drive off. Within minutes, the assailant forced Johnson to pull over to a corner where the assailant picked up a second man who knew how to drive a "stick-shift." The second man climbed into the rear of the vehicle, and they drove off again. Johnson and Yeazel testified that the second man wore blue jeans, a dark checkered shirt and a cream colored baseball cap with an emblem. After driving for a few more streets, Johnson was ordered to pull over to the curb lane and exit the Sidekick. At this time, both Johnson and Yeazel exited the vehicle as the second assailant checked Johnson's pockets. Johnson and Yeazel were told to walk down the street and not to look back. At this time, the second assailant jumped into the driver's seat, and the two assailants drove away in the vehicle. Once the assailants were out of sight, Johnson and Yeazel ran into a nearby home and dialed "911" to report the incident and theft. Yeazel told Johnson that he recognized the first assailant as appellant Terrence Williams. Yeazel stated that he knew Mr. Williams from high school. - 5 - At 9:47 p.m. on September 13, 1993, Cleveland Police Patrolmen Vanessa Summers and Marino DiMarco were travelling northbound on East 128th Street. At this time, the patrolmen received a broadcast regarding a vehicle that had been robbed at gunpoint. Moments after receiving the broadcast, a vehicle fitting the broadcast's description went "flying by" the patrol car heading southbound on East 128th Street. The patrolmen turned their vehicle around to give chase. As the patrolmen turned onto Metcalf Road, they found the vehicle stopped, blocking the street. Both of the doors to the vehicle were open, and a man jumped out of the driver's side and ran into the nearby yards. Patrolman DiMarco gave chase to the fleeing suspect. After a few minutes of chasing the suspect through back yards and side streets, Patrolman DiMarco was unable to apprehend the suspect; however, the patrolman did find clothes which, it was later determined, matched the description of the clothes worn by the second assailant. Approximately twenty-five minutes after placing the "911" call, Johnson and Yeazel were taken to the abandoned Sidekick, where various personal items were returned to them. At this time, Yeazel informed the police that he knew the name of the first assailant. Yeazel named his former high school classmate, Terrence Williams, as the man who committed the armed robbery. A week after the incident, Johnson and Yeazel were contacted by Detective Michael Smith of the Cleveland Police Department. On September 22, 1993, Detective Smith interviewed Johnson and Yeazel - 6 - regarding their versions of the events of September 13, 1993. After separately taking the statements of both men, Detective Smith showed the men a photo array of four pictures. The photo array consisted of a picture of appellant, as well as three pictures of similar-looking men. Detective Smith laid the pictures face down on a table and individually instructed Johnson and Yeazel to "flip [the pictures] over until you find the person that carjacked you." Both men identified the picture of appellant as the man who robbed them at gunpoint nine days earlier. After the above-described identification, the police obtained an arrest warrant for appellant, Terrence Williams, and, on September 23, 1993, appellant was arrested by members of the Cleveland Police Department. Thereafter, appellant was indicted on October 26, 1993. On November 9, 1993, appellant was arraigned and entered a plea of not guilty to all charges within the indictments. On November 30, 1993, appellant filed a notice of alibi, claiming that he was at his place of employment at the time of the alleged offense. A jury trial commenced on December 9, 1993. At trial, the State of Ohio presented the testimony of the following witnesses: Johnson; Yeazel; Patrolwoman Summers; Patrolman DiMarco and Detective Smith. In support of his defense, appellant presented the testimony of the following witnesses: His mother, Ms. Vanessa Williams; his brother, Carlos Williams; and his - 7 - employer, Mr. Fossett Best. Appellant also testified on his own behalf regarding his whereabouts on the night of the robbery. At the close of evidence, the trial court denied appellant's motion for acquittal pursuant to Crim.R. 29. Thereafter, at approximately noon on December 13, 1993, the jury retired for deliberation. At approximately 1:00 p.m. on December 14, 1993, the jury sent a note to the trial court informing the court that they could not reach a verdict. As a result, the trial court gave the jury a supplemental instruction regarding the importance of trying to reach a verdict. After this instruction was given, the jury was returned to the deliberation room. Later that afternoon, the jury returned a verdict of guilty to all counts of the indictment. On December 21, 1993, appellant was sentenced to three years on the gun specification in addition to five to twenty-five years on two counts of aggravated robbery and three to fifteen years on two counts of kidnapping, all counts to run concurrently. A motion for delayed appeal was granted, and appellant was assigned counsel for this appeal. Thereafter, a timely notice of appeal was filed with this court. For the reasons that follow, we affirm the decision of the trial court. I. All four of appellant's assignments of error argue, for various reasons, that his trial counsel was ineffective in his - 8 - representation of appellant. Therefore, we initially set forth the standard of review that this court will apply in regard to all of appellant's assignments of error. A claim of ineffective assistance of counsel involves a two- step analysis: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668. The test enunciated in Strickland is essentially the same as the one adopted by the Ohio Supreme Court in State v. Hester (1976), 45 Ohio St.2d 71, 79 and State v. Lytle (1976), 48 Ohio St.2d 391, 395. Furthermore, the burden of proving one's counsel's ineffectiveness is on the defendant. State v. Smith (1985), 17 Ohio St.3d 98. In Ohio, trial counsel is strongly presumed to have rendered adequate assistance. Id. Therefore, trial counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. Lytle, supra; State v. Bradley (1989), 42 Ohio St.3d 136; State v. McNair (Sep. 22, 1994), Cuyahoga App. No. 65161, unreported. The test for prejudice requires that a reviewing court look to the totality of the circumstances and - 9 - determine whether the defendant has met the burden of showing that the decision reached would likely have been different absent errors. Strickland, supra, at 695-696; McNair, supra. With the foregoing standards in mind, we begin our analysis of appellant's assignments of error presented in the case sub judice. II. In his first assignment of error, appellant argues that his trial counsel was ineffective because he failed to conduct proper pre-trial discovery. Appellant argues that his trial counsel failed to effectively obtain knowledge of his case through the discovery procedures of Crim.R. 16. In addition, appellant contends that the failure of trial counsel to file a motion to suppress the eyewitness identifications of Johnson and Yeazel amounted to ineffective assistance of counsel. Initially, we note that appellee has filed a supplementation to the trial court record pursuant to App.R. 9(C). This supplement reveals that trial counsel conducted two pre-trial discovery meetings with the prosecution. During these discovery meetings, the prosecution supplied appellant's trial counsel with all witnesses' names and their statements, the existence of the photo array, and all other information pertinent to appellant's case that was collected by the police. In addition, the record reflects that appellant's trial counsel filed a timely notice of alibi with the - 10 - trial court. For these reasons and from a complete review of the record, we find that trial counsel's preparation and discovery process was sufficient to provide all the necessary information for an effective and well-prepared defense. Secondly, appellant contends that the lack of a motion to suppress the eyewitness identification amounted to ineffective assistance of counsel. In support of his argument, appellant contends that the photo array used by the police was seriously flawed. Appellant points to alleged procedural defects, i.e., the other photographs used were not similar to appellant's picture, in support of his claim that the photo array was "fraught with suggestibility." This court's observation of the photo array fails to support this contention. The photo array was merely presented by Detective Smith to insure that he had found the correct Terrence Williams. Yeazel personally knew appellant; however, he did not know where appellant lived. The photo array merely confirmed that the Terrence Williams that police sought was the same Terrence Williams Yeazel had identified. Furthermore, both witnesses positively identified appellant at trial. Therefore, appellant has failed to show how the photo array caused prejudice to his defense. Strickland, supra. Due to the fact that the identification of appellant by the two victims was highly reliable, we cannot say that trial counsel's decision to forego the filing of a motion to suppress the photo - 11 - identification amounted to ineffective assistance of counsel. See, State v. Hines (Nov. 23, 1994), Cuyahoga App. No. 66458, unreported. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant argues that his trial counsel committed plain error when he cross-examined Detective Smith with regard to appellant's alibi. During his cross-examination of Detective Smith, appellant's trial counsel asked the following question: Q. Did he or did he not tell you that, on the 13th of September, at 9:00 p.m. in the evening, he was employed at his job? A. I don't recall him mentioning anything like that. Q. You wouldn't think so? A. If he told me, I would have remembered it. Q. But you don't remember it? A. No. Q. You don't remember that -- from the very onset -- him saying, "It wasn't me. I couldn't have because I wasn't there. I was at my job?" Q. He didn't say "job." I think he noted that he was somewhere, at some other part of the city, but it wasn't a job. - 12 - Q. He wasn't at his job? A. No. Q. Where do you recall, if you can, him saying he was in another part of the city? A. He recalled it was somewhere else; like he was out of town or something. Q. He was out of town? A. Right. I don't know if it was another facility or what, but he said, "It wasn't me." Appellant argues that this line of questioning was improper because it asked the detective about appellant's post-arrest, post- Miranda silence in violation of the mandates of Doyle v. Ohio (1976), 426 U.S. 610. In Doyle, the supreme court held that it was a violation of a defendant's right against self-incrimination for a prosecutor to use the defendant's post-arrest, post-Miranda silence against him at trial. However, in the present case, unlike Doyle, appellant did not maintain his post-Miranda silence. Rather, the record shows that during the course of discovery, the state informed appellant's counsel of the statement appellant made to police at the time of his arrest. For this reason, we do not find appellant's reliance upon Doyle appropriate to the case at hand. The questions raised by appellant's counsel were an attempt to impeach Detective Smith and bolster the veracity of appellant's alibi by getting Detective Smith to admit that appellant stated his alibi immediately upon being arrested. However, Detective Smith merely testified that appellant stated he was "somewhere, at some - 13 - other part of the city, but it wasn't a job." Appellant contends that this line of questioning amounted to ineffective assistance because it permitted the prosecution to proceed in a manner prohibited by Doyle. We do not agree. The prohibitions defined by Doyle are only imposed upon the prosecution. They do not pertain to a defendant's trial counsel. Rather, the decision regarding whether to inquire into a defendant's post-arrest statements are matters soundly within the province of trial counsel. Therefore, the standard by which this court will review the decision of appellant's counsel is the same as used in appellant's previous assignment of error. Strickland, supra; Lytle, supra; Smith, supra. From a thorough review of the record, we cannot conclude that, under the circumstances, the decision to cross-examine Detective Smith regarding appellant's initial alibi was an unreasonable tactic to use. State v. Frazier (1991), 61 Ohio St.3d 247, 253. Counsel was presented with a defendant who had been positively identified by both of the victims. In addition, counsel was aware that appellant had made a statement to police immediately upon being arrested. The main crux of appellant's defense was that he was at work at the time the offenses were committed; therefore, appellant contended, he could not have been the person who committed the offenses. The veracity of this alibi was the cornerstone of his defense. Proof that an alibi was immediately stated to the police upon appellant's arrest would have greatly bolstered the probability that appellant's - 14 - alibi, as presented at trial, was genuine. Therefore, under the circumstances presented to trial counsel, we find his cross- examination of Detective Smith to be a reasonable trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319. Moreover, appellant has not proven that the result of the trial would have been different but for counsel's cross- examination of Detective Smith. A defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different in order to establish he has been prejudiced by counsel's deficient performance. State v. Mills (1992), 62 Ohio St.3d 357, 376. In light of the overwhelming evidence presented to prove appellant's guilt, we find that even if error had resulted from trial counsel's cross-examination of Detective Smith, it was harmless beyond a reasonable doubt. Crim.R. 52. Accordingly, appellant's second assignment of error is overruled. IV. In his third assignment of error, the appellant argues that his trial counsel's failure to object to certain statements admitted during trial amounted to plain error and ineffective assistance of counsel. Appellant contends that his counsel failed to object to portions of the testimony of Shawn Yeazel and Patrolmen Summers and - 15 - DiMarco. Specifically, it is appellant's contention that the admission of Yeazel's testimony regarding statements made to him by Johnson were inadmissable hearsay. Likewise, appellant contends that the testimony of the patrolmen regarding their statements made to each other amounted to hearsay. Appellant contends that the failure of trial counsel to object to the testimony of these witnesses, and its subsequent admittance by the trial court, amounted to plain error. We do not agree. Error relating to a trial court's admission of hearsay must be reviewed in light of Evid.R. 103(A) and the standard established in Crim.R. 52(A), providing that such errors are harmless unless the record demonstrates that the errors affected a party's substantial right. State v. Sorrels (1991), 71 Ohio App.3d 162, 165; see also, Staff Note to Evid.R. 103(A). We find that the admission of the statements to which appel- lant objects, while arguably hearsay, did not affect any of appellant's substantial rights. All of the statements in question were made to the witnesses by declarants who, themselves, testified before the trial court. Moreover, each of the declarants of the purported hearsay testified during the trial and were subject to cross-examination. Furthermore, all of the declarants reiterated the very statements which appellant contends are hearsay. For these reasons, we find that any error that may have resulted from trial counsel's failure to object to these statements - 16 - was harmless beyond a reasonable doubt. Crim.R. 52(A). Accordingly, appellant's third assignment of error is overruled. V. In his fourth assignment of error, appellant argues that he was denied effective assistance of counsel when his trial counsel failed to object to the trial judge's supplemental jury charge. The Ohio Supreme Court has held that when a jury is deadlocked, it may be proper for the trial court to read a supplemental jury instruction commonly called a Howard charge. See, State v. Howard (1989), 42 Ohio St.3d 18, paragraph two of the syllabus. In the present case, after receiving notice of the 1 jury's deadlock , the trial court read the following charge: The Ohio Supreme Court advises Trial Courts as follows: That when a reasonable time has elapsed and the Court believes that a verdict may not be possible, it is to call the jury out and read this short note, the importance of reaching a verdict. Since the trial of this case means a great deal to the parties and to the public, and has been expensive in time, effort and money, the Court urges you to make every reasonable effort to agree upon a verdict. You may consider that this case must at some time be decided, that 1 In the present case, there is a discrepancy between the parties as to how long the jurors deliberated before the trial court gave them its modified Howard charge. A thorough review of the journal entries of the trial court reveals that the jury began deliberation on the afternoon of December 13, 1993. The jury did not inform the trial court that it could not come to a verdict until approximately 1:00 p.m. on December 14, 1993. Therefore, any argument posed by appellant that the jury had not deliberated long enough prior to the trial court's Howard charge is improper. - 17 - you are selected in the same manner and from the same source from which any future jury must be selected. There is no reason to suppose that the case will ever be submitted to 12 individuals more intelligent, more impartial or more competent to decide it or that additional evidence will be produced by either side. We are again talking about a future trial. It is your duty to make every reasonable effort to decide the case if you can conscientiously do so. So I'm going to send you back then to the room for deliberations and ask you to continue at least to make a valiant effort here to resolve the case, okay? All right. Appellant contends that this charge was improper because it was not "balanced and neutral" as required by Howard. Furthermore, appellant contends that the charge improperly emphasized both the expense in "time, effort and money" and the importance of the jury reaching a verdict. We do not agree. Appellant relies on the Howard case to claim that the failure by trial counsel to object to the charge was ineffective assistance of counsel, but we think Howard affords appellant no help. In Howard, the supreme court reversed the conviction and granted a new trial pursuant to a post-conviction petition based on ineffective assistance of counsel. The charge contested in Howard was modeled after the traditional Allen charge. Allen v. United States (1896), 164 U.S. 492. In reversing the conviction of the defendant, the Howard court found the supplemental charge given to the jury was not balanced and neutral. The court held that the weight of this charge was improper and had the effect of coercing the minority - 18 - jurors to agree with those jurors constituting the majority. 2 Howard, supra, at 23. Therefore, the court held the failure of trial counsel to object to the charge amounted to ineffective assistance of counsel. Appellant argues that the difference between the present charge and the suggested Howard charge makes the present charge improper. While we acknowledge that the better practice for trial courts would be to simply read the suggested format laid out in Howard, we do not find the variance in the present case dispositive. Rather, the charge read to the jury herein contained all of the essential elements of the Howard charge to insure that it was balanced and neutral. The charge set forth in Howard was merely a suggestion posed by the supreme court. It is not an absolute mandate for lower courts to follow. Nonetheless, any supplemental charge given by a lower court must, at a minimum, satisfy the stated goals of the suggested Howard charge. These goals are 1) to encourage a verdict where one can conscientiously be reached and, 2) be balanced enough 2 It is interesting to note that this "coercive" argument is only proposed in those situations, such as the matter herein, where the verdict returned by the jury finds the defendant guilty. In these situations, it is argued that the guilty finding of the jury was a result of the "coercive" supplemental charge, thereby precluding the greater likelihood that the facts presented before the jury lead them to conclude that the defendant was guilty. However, the contrary argument has never been raised in case law or otherwise: that the effect of the charge may have been to change the opinion of a minority of the jurors from guilt to innocence, thereby making the charge "coercive" against the prosecution. - 19 - to allow jurors to reconsider their opinions in light of the fact others do not agree. Id., at 25. Therefore, we conclude that the present charge complies with the goals of Howard. The main purpose of any supplemental charge is to insure that the jurors realize their duty and are reminded of such. It is much better that the jury decide the case, if they conscientiously can, than not decide. In the present case, it cannot be argued that the present charge acted in a way to coerce the minority jurors, whatever side they encompassed, in such a manner as to prejudice the defendant. Rather, we find that the present charge merely reminded the jurors of their sworn duty to decide the case conscientiously, if they could. Contrary to appellant's contentions, nothing within the charge was of such a "dynamite" and coercive nature to amount to grounds for reversal. We find that the present charge, while not a verbatim recitation of the charge contained within Howard, was an appropriate supplemental jury charge. Therefore, the failure of appellant's trial counsel to object to this charge did not constitute ineffective assistance of counsel. Accordingly, appellant's fourth assignment of error is overruled. Judgment is therefore 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J. PATRICIA BLACKMON, J. CONCUR JUDGE DONALD C. NUGENT 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, .