COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66962 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JAMES L. CHAMBERS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 6, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-301554 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT J. CHRISTYSON, JR. Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN P. PARKER 4403 St. Clair Avenue Cleveland, Ohio 44103 - 2 - O'DONNELL, J.: Appellant James Chambers appeals his murder conviction for killing Linda Walker. Appellant waived his right to trial by jury, and the matter was tried to the court on January 24, 1994. The evidence revealed that on the evening of September 8, 1993, Chambers, who had a relationship with Linda Walker, saw her at Tim's Lounge having a drink with Aaron Jones. Walker invited appellant to come to her home later that evening. Approximately ten-thirty that evening, appellant arrived at Walker's house, the upstairs of a double, and while inside, overheard Walker talking to a motorist from the upstairs porch. (T. 156-157.) Appellant then asked Walker if the person in the car had been Jay, her ex- boyfriend, or John, her ex-husband, but she would not reveal the driver's identity. (T. 157.) Appellant inquired if Walker had been seeing someone else, she said yes, and appellant wondered who would take care of her and pay her bills. (T. 157.) Appellant's direct testimony reflects the following: * * * -- why did she think that I be going to work and bringing food and stuff for her, and bringing food for her while she was out sleeping around with everybody else and stuff like that, and she said --just told me, she said it is none of my business. She told me it is none of my business. She told me it is none of my business, that the only thing I can do for her is stop around and pay her bills and stuff. If I didn't want to do that, I could get the hell out and stuff like that. - 3 - And so the next thing I knew, I just grabbed something and I hit her. I kept hitting her. That's when I seen the knife on the dresser. I just started stabbing. And on cross-examination, appellant stated: * * * I admitted to killing Linda, but it is not on the fact that she was seeing someone else. It was on the fact that I was taking care of Linda and Linda was like --she was like using me. * * * Q. And you said you hit her; is that correct? A. Yes. Yes. Q. Where did you hit her? A. In the head. Q. Was her back turned to you when you hit her? A. When I grabbed the box, Linda was turned around getting on the bed. That's when I hit her. Q. So her back was to her when you hit her? A. Her back was to me. Q. And then you said you saw the knife? A. Yes. Q. And you started stabbing her? A. Yes. Q. How many times did you stab her, Mr. Chambers? A. I don't know. I wasn't counting. * * * - 4 - Q. Mr. Chambers, weren't you covered with blood by the time you finished that? A. Was I covered with blood? Q. Right. A. Yes, I was covered with blood. * * * Q. So when did you decide to strangle her? A. When I--after she was lying on the bed. That's when I grabbed the thing and put it around her neck. Q. Just to make sure she was dead? A. No, I was in anger. I was talking to her. Q. Mr. Chambers, Linda Walker was found naked on the bed. How did her clothes get off, if you know? * * * A. She took her clothes off to get into bed. Q. Okay. Mr. Chambers, at one point after this was all over, what did you do next? A. After I realized what I did, I went in the bathroom and I washed off, put my clothes on and I left. Appellant also testified that Walker did not threaten or attempt to strike him in any way and that he did not tell anyone what he had done until the trial and that he turned himself in because he knew what he had done was wrong. (T. 160-161.) The coroner, Dr. Robert Challener, determined the cause of Walkers' death to be blunt impacts to the head with multiple stab and incised wounds of the trunk and extremities and ligature - 5 - strangulation. The autopsy revealed a total of sixteen stab wounds, six of which entered from the front, piercing the right and left abdomen, with a cluster of eight additional stab wounds to the right chest and abdomen, each of which pierced the torso to a depth of seven inches, perforating the liver and the gall bladder. Other stab wounds were to the neck and the right hand which measured three-fourths of an inch in depth. Dr. Challener also found Walker's blood alcohol content at a level of .24 percent. Based on the evidence presented, the court returned a verdict finding appellant guilty of murder. Appellant now appeals and has assigned two errors for our review. I. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE NO PSYCHOLOGICAL OR PSYCHIATRIC EVALUATION OF THE APPELLANT WAS PERFORMED TO ASSIST THE FACT FINDER IN DETERMINING THE APPELLANT'S PROPENSITY TO BE PROVOKED INTO USING DEADLY FORCE. Appellant urges that his trial counsel denied him effective assistance of counsel because he should have offered expert testimony on appellant's behalf to prove that appellant could be easily provoked to act under the influence of sudden passion or in a sudden fit of rage. The State believes the actions of defense counsel did not deny appellant effective assistance of counsel as there was no - 6 - substantial violation of an essential duty to his client which resulted in prejudice to the defense. The issue for this court, then, is whether the actions of defense counsel denied appellant his right to effective assistance of counsel. We begin our analysis with State v. Post (1987), 32 Ohio St.3d 380, which set forth the test to obtain a new trial for ineffective assistance of counsel at page 388: In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court enunciated the following two-pronged standard for determining whether counsel's assistance was ineffective: "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 that 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 ***" See also State v. Seiber (1990), 56 Ohio St.3d 4, 11. In evaluating defense counsel's performance, a reviewing court initially presumes that duly licensed counsel performed competently. See State v. Lytle (1976), 48 Ohio St.2d 391, 397. Further, a reviewing court must accord deference to counsel's strategic choices from counsel's perspective at time of trial without the benefit of hindsight. See Strickland, supra. In order to show prejudice, the defendant must prove that a reasonable probability exists that, absent counsel's error, the result of the trial would have been different. See State v. - 7 - Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. In this case, appellant's indigency did not automatically accord him the right to request and receive a psychological examination or the services of an expert witness at state expense. See State v. McLaughlin (1988), 55 Ohio App.3d 141, 143- 144. The provision of such services depends upon a showing of necessity and is a matter within the discretion of the trial court. Id. When defense counsel chooses, for strategic reasons, not to pursue every possible trial tactic, he is not violating an essential duty to his client. State v. Brown (1988), 38 Ohio St.3d 305, 319. Further, our review of the record does not reveal any history of psychological disorder, mental illness, or other indication that referral for psychological evaluation would have been warranted. Further, appellant has not met the test in State v. Bradley, supra, showing that the result of the trial would have been different, or been able to evidence that a psychiatric evaluation would have resulted in a finding which supports the theory advanced by appellate counsel. We cannot predicate reversible error in this case on the failure of trial counsel to interpose every possible defense, or conclude that failure to do so renders counsel deficient. We find that appellant had effective trial counsel in this case. - 8 - We conclude that appellant failed to establish either that trial counsel's performance was deficient or that the alleged errors were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. As such, the actions of defense counsel did not deny appellant a fair trial or deny him his Sixth Amendment right of effective assistance of counsel. This assignment of error is overruled. II. THE TRIAL COURT LACKED JURISDICTION TO TRY AND CONVICT THE APPELLANT WHEN IT FAILED TO STRICTLY COMPLY WITH O.R.C. 2945.05. Appellant argues that because the trial court failed to strictly comply with R.C. 2945.05, the court lacked jurisdiction over the person of appellant, and cites State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261, in support of this position. The State claims the facts of the instant case are distinguishable from and not governed by Jackson because appellant knowingly and intelligently executed a written waiver of jury trial, as evidenced by the written jury waiver form which appellant signed in open court and the trial court's journal entry of that waiver. The issue for this court, then, is whether the trial court complied with the provisions of R.C. 2945.05, thereby enabling the court to exercise jurisdiction over appellant. - 9 - In Jackson, the court could not determine whether the defendant ever signed a jury waiver because it was not part of the record. Here, however, the waiver is part of the record in this case, and trial counsel witnessed appellant's signature on it. The record also contains two separate journal entries reflecting the appellant's waiver of jury trial. A court of record speaks through its journal. See State v. Mincy (1982), 2 Ohio St.3d 6. As such, the trial judge has complied with the statutory requirements to record the waiver. Since the trial court journalized the waiver and filed those entries with the clerk of court and those entries are part of the record, and since the original waiver is contained in the record before us, this factual situation is distinguishable from and not governed by the holding in Jackson, supra. We conclude that the trial court has complied with the provisions of R.C. 2905.05 and this assignment of error is overruled. Judgment affirmed. - 10 - 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. NUGENT, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .