COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67048 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KELVIN THOMPSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 303894 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD S. WADE, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 75 Public Square Bldg. JOHN R. KOSKO, ESQ. Suite #1210 ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on November 5, 1993 with two other defendants for the aggravated murder of Junius Chaney. A firearm specification was also included in the indictment, as the evidence clearly showed that Chaney was killed at close range with a shotgun. Appellant and his co-defendants plead not guilty to the charge and proceeded to trial jointly, with separate counsel. Mid- way through the trial, one of the co-defendants, Lance Carter, pleaded guilty to the lesser offense of obstructing justice and proceeded to testify for the prosecution against appellant and the remaining co-defendant, Wilbert Houston. Appellant and Houston were found guilty of aggravated murder, including the firearm specification. Both were sentenced to life imprisonment plus three years for the specification, to be served consecutively. Appellant was also in violation of his probation for selling cocaine. For the violation appellant was sentenced to an additional six month consecutive term of imprisonment. Five witnesses to the actual events which took place during the early hours of November 5, 1993 were presented by the State of Ohio. Among these witnesses there was agreement that a loud discussion took place after midnight in front of Rachel Whitaker's home on Crestwood. This loud discussion drew the attention of Louise LaGren, the neighbor across the street, Dwayne Walker, two doors down from Mrs. LaGren, and Lance Carter, who was relieving himself behind his house, next door to Rachel's house. All three - 3 - witnesses recognized Wilbert Houston as one of the participants in this loud discussion. Walker and Carter remembered the other participant as being more aggressive and provoking in his language to Houston. The other participant was identified by Walker and Carter as Junius Chaney, now deceased. Mrs. LaGren saw the men arguing outside then returned to her television program. She heard voices again and looked out from the second floor. This time she saw a flash and heard a boom. LaGren saw appellant and Houston getting into appellant's truck. She also saw Carter relieving himself, then coming up to the truck and joining the other two men. LaGren later joined Jackie Sanders, another neighbor, on the porch downstairs to watch the police and ambulance workers across the street. Jackie Sanders is also a friend of appellant. He had given her a ride to pick up her food stamps earlier in the day. In fact, Sanders had entrusted some of her food stamps to appellant out of fear that someone might have stolen them from her while she did her shopping. Later that night, around midnight, Sanders left her four children at home asleep to retrieve her food stamps from appellant. He was outside at the time near his truck. Sanders unintentionally startled appellant and he warned her that she could get killed that way. They spoke briefly about the problem of drug dealers coming down Crestwood from Woodland Avenue. According to Sanders appellant tried to keep the young dealers from hanging out around - 4 - his girlfriend's house. Rachel Whitaker was appellant's girlfriend. As they spoke, Sanders noticed a white Mustang parked near appellant's truck. She recalled seeing four men in the car. Appellant, apparently still concerned about the traffickers in spite of his own trafficking conviction, told Sanders, "I'm gon' mess around and kill me a nigger tonight." Sanders recalled that appellant was intoxicated. She decided to go get her boyfriend and walk down Grantview to see if she could find a ride over to her niece's house. It was approximately one o'clock in the morning. As Sanders left her house with her boyfriend, she saw a man she had seen a couple of times before walking on the opposite side of the street. She testified that that man was Junius Chaney, although she could not identify the man from the photos taken during the autopsy. Sanders and her boyfriend, Beady, walked on to Grantview. As Sanders and Beady were coming back from Grantview through the alley separating Grantview and Crestwood, Sanders heard a loud boom. She thought that appellant might have killed Rachel. Upon exiting the alley she saw appellant, Houston and Carter get into appellant's truck and drive away. She and Beady continued to walk for three or four more minutes up Crestwood to 110th. When they saw all the police cars coming down Crestwood, they turned around to see what was happening. They sat on the porch downstairs from Mrs. LaGren to watch. During the time the police were still on the - 5 - scene, Sanders saw appellant, Houston and Carter return to their houses on foot. The next morning, appellant gave her a ride to the store. They had to walk to 111th and Woodland where appellant had parked his truck. Appellant told her he had heard there was a murder the previous night. Sanders did not mention that she had seen him and the other two men leave the scene in his truck. Dwayne Walker saw more than Mrs. LaGren or Jackie Sanders that night. Walker testified that prior to hearing the loud discussion outside, Junius Chaney had stopped at his house to find Walker's brother, Marcus. Junius identified himself and when Marcus was found to be not at home, continued on his way down Crestwood. Several seconds later, Walker heard the loud voices and looked out his screen door. He saw Chaney leave the argument and walk up the steps to Michael Wilmore's house, two doors down from Rachel's house. Walker then saw appellant go into Rachel's house and return moments later with a shotgun. Walker had seen appellant with the gun on at least two other occasions, shooting it in the air off of Rachel's front porch while intoxicated. According to Walker, appellant gave the gun to Houston and both men walked over toward Wilmore's house. Walker stated that appellant actually stayed in front of the house next door to Wilmore's while Houston proceeded to Wilmore's porch. Walker heard someone say, "Why you got to go get a gun, it ain't got to be like that." Then he heard a loud boom. Walker heard Wilbert state, "My name Will" and appellant - 6 - say, "You next Mike because I don't like you anyway." Houston had the gun as the two men walked toward appellant's truck. Dwayne Walker's testimony was supported in most respects by co-defendant turned State's witness, Lance Carter. Carter claimed that he had seen Walker standing in his yard watching the events, yet Walker testified that he had seen all from the doorway of his house. The relevant part of Walker's testimony was corroborated by Carter. Carter had been out driving around with his friend Joe in Joe's white Mustang. At one point they picked up Houston and one other passenger. Carter remembered seeing appellant out by his truck earlier in the evening when they were in the Mustang, but did not see Ms. Sanders speaking with appellant. After being dropped off by Joe later that night, Carter went to his backyard to relieve himself. He testified that Mrs. LaGren could not have seen him urinating in his back yard. She claimed to have seen him relieving himself in the vacant lot beside her house. Defense counsel took this conflicting testimony and questioned Carter as to whether he thought Mrs. LaGren was "lying." He did. Carter came from behind his house when he heard the loud voices. Carter saw Chaney berating Houston, then walking away. Carter next saw appellant go into his house and return with a shotgun. He heard Houston say to appellant, "Give me that damned gun" and take it out of appellant's hands. Both men walked down the sidewalk together. Carter could see appellant stopping in front of the house next to Rachel's house, but Houston walked on. - 7 - Carter's view of Michael Wilmore's house was blocked by the bushes. He heard a shot. Appellant and Houston then walked back toward appellant's truck. Admitting on the stand to being stupid and nosey, Carter testified that he ran up to the truck and got in. He did not believe that Houston had actually shot Chaney until they had dropped the shotgun off at the house of one of appellant's friends and returned to the scene. Seeing numerous police and emergency vehicles, Carter testified that appellant parked the truck at 111th and Woodland, then the men walked back to their homes. Carter admitted to having lied to the police when he gave his statement the next day because he was scared. The witness closest to the shooting who is still alive and not a defendant, was Michael Wilmore. He testified that Junius Chaney knocked on his door about one o'clock the morning of November 5th. Wilmore spoke with him for approximately fifteen minutes through the screen door. Chaney seemed apprehensive and kept looking back toward the street. He told Wilmore that he had just had words with someone in the neighborhood. Wilmore heard steps on his porch. He saw the barrel of a gun which he recognized as belonging to appellant. He could not see the face of the person holding the gun but that person was dressed just like Wilbert Houston had been earlier that afternoon when the two of them had gone to an auto body shop together. Then Wilmore heard Houston's voice say, "You know nothing about me; don't ask nothing about me." Wilmore had been a neighbor of Houston's for about two years. After he was - 8 - shot Chaney told Wilmore to just go inside. Wilmore woke up his girlfriend and called the police, who came "thirty to forty-five minutes later." The State's witness from the coroner's office testified that Chaney had been shot with a shot gun within close range, two to four feet away. They ruled his death a homicide. Dr. Heather Raaf also testified from medical records that Chaney was admitted to the hospital at 1:18 a.m. and the time of death was recorded as 1:44 a.m. After the State rested its case, the prosecution moved to add one more item to its discovery. The prosecutor told the court that it could not recall giving the defense the oral statement made by appellant on the morning of November 6th to Detective Parkinson. The State moved to add the statement that appellant had orally told Parkinson that he was at his girlfriend Rachel's house from eleven o'clock p.m. on November 4th, until he woke up on the 5th of November. He claimed to know nothing about the murder. Defense counsel filed an oral motion in limine to exclude that statement. The trial court withheld its ruling on the two motions until after appellant presented his two alibi witnesses, Patricia and George Harrison. This couple testified that appellant was at their house at the night in question from approximately seven-thirty until two or three the next morning, playing cards and drinking beer. - 9 - The trial court then found the rebuttal testimony to be highly relevant and denied appellant's counsel's motion in limine. The court also determined that defense counsel was previously aware of another statement appellant had made to the effect that he could not account for his whereabouts that night. The court found this statement to be partial rebuttal to the alibi, so defense were not thrown completely in surprise by the newly disclosed rebuttal evidence. The court found it significant that the defense did know about the State's evidence prior to putting on the witnesses, even if the defense had not known about appellant's oral statement when they made their opening statement to the jury and referred to appellant's alibi. Detective Parkinson's rebuttal testimony to the effect that appellant claimed to be at Rachel's all night was allowed to go to the jury. Appellant appeals from his conviction and sentence, asserting five assignments of error through his assigned counsel. Appellant was also permitted by this Court to file a supplemental appellate brief, pro se, which reiterated the assignments of error asserted by his counsel and also raised one novel error which will be treated as the sixth assignment of error below. I DEFENDANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that no evidence was presented to connect him with control or ownership of the firearm. He claims that the evidence showed that the gun was seized from him without prior - 10 - discussion, therefore he could not have been acting as a conscious, knowing and purposeful aider and abettor. Appellant's argument is without merit. To find in favor of appellant's theory that his conviction was against the manifest weight of the evidence, this Court would necessarily have to find that: [I]n resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that that conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, paragraph three of the syllabus. Given the testimony of Dwayne Walker, Lance Carter and Michael Wilmore that the gun used to kill Junius Chaney belonged to appellant and that immediately following the verbal altercation in front of his girlfriend's house, appellant retrieved his shotgun and at the very least made it available to Houston, we can not find that the jury lost its way. R.C. 2923.03 states as follows: (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: * * * (2) Aid or abet another in committing the offense... On the issue of showing a defendant's purpose to kill under the complicity theory, the Ohio Supreme Court has held that: A jury can infer an aider and abettor's purpose to kill where the facts show that the participants in a felony entered into a common design and either the aider - 11 - and abettor knew that an inherently dangerous instrumentality was to be employed to accomplish the felony or the felony and the manner of its accomplishment would be reasonably likely to produce death. State v. Lockett (1976), 49 Ohio St. 2d 48, paragraphs three and four of the syllabus. State v. Scott (1980), 61 Ohio St.2d 155, 165. Clearly, the evidence supported a showing of appellant's purpose to kill when he supplied the shotgun to an angry neighbor. Furthermore, appellant accompanied Houston at least part of the way to Wilmore's house, drove him away from the murder scene in his pickup and secured the weapon with a friend. We can not find that the jury created a manifest miscarriage of justice in convicting appellant as an aider and abettor to Chaney's murder. Appellant's first assignment of error is overruled. II PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Appellant argues that the prosecution exhibited two instances of misconduct during this trial. The first instance was in questioning Lance Carter on re-direct as to whether other witnesses were lying. The second instance of misconduct was in deliberately withholding appellant's oral statement, used to rebut his alibi testimony. Neither of these examples constitutes misconduct justifying a new trial. The defense clearly opened the door to the prosecution's line of questioning Lance Carter on re-direct. Appellant's trial counsel asked Carter if Mrs. LaGren was lying when she testified - 12 - that she saw him urinating in the vacant lot next to her house. Carter agreed that she was lying about that. Defense counsel asked Carter if Sanders was also lying. He agreed. Defense counsel asked if Dwayne Walker was lying about standing in his doorway and not in the yard while he watched the events. Carter said he must have been lying, Walker could not see Wilmore's porch from his house. (Transcript p. 527). On re-direct the prosecutor asked Carter if Sanders had been lying when she saw the three men get into the truck. The prosecutor proceeded to question Carter as to whether the other witnesses, whom he had previously said were lying, were telling the truth about the relevant facts of the case. Carter agreed that the other witnesses had been truthful about the facts that actually mattered. Appellant can not raise this as an instance of misconduct on the part of the prosecution. The defense opened the door to this whole line of questioning, therefore the prosecutor was entitled to counter the attack on the credibility of the State's witnesses. As to the court's admission of testimony from the State's rebuttal witness, Detective Parkinson, based upon the oral statement of appellant, we find that the court did not abuse its discretion. Appellant failed to show that the withholding of the statement by the prosecution was a willful violation of the State's duty to disclose under Crim.R. 16(B). - 13 - The Ohio Supreme Court set forth the test to determine when an abuse of discretion is committed in a similar case as follows: Where, in a criminal trial, the prosecution fails to comply with Crim R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim. R. 16, (2) that foreknowledge of the statement would have benefitted the accused in the preparation of his defense, or (3) that the accused was prejudiced by the admission of the statement, the trial court does not abuse its discretion under Crim. R. 16(E)(3) by permitting such evidence to be admitted. State v. Parson (1983), 6 Ohio St.3d 442, at the syllabus. In this case the defense were unable to show any evidence as to a willful withholding of this statement. In fact, appellant had made three oral statements to the police and two of the statements were submitted pursuant to the State's duty under the discovery rules. The prosecutor told the trial court that he simply could not remember whether he had told defense counsel about the statement or not. The prosecution made a motion prior to the introduction of appellant's alibi witnesses' testimony to amend its discovery to include the statement. Although, appellant's counsel used the alibi theory in its opening statement to the jury, the trial court found that defense counsel was on notice of the rebuttal evidence prior to putting on its witnesses. This timing is significant in that the defense team did have some foreknowledge of the statement and supposedly used that knowledge in deciding whether or not to go forward with the alibi theory. - 14 - Furthermore, appellant can not show that he was prejudiced by the untimely disclosure of his statement. The evidence against appellant is overwhelming. In light of so much eye witness testimony, it is impossible to find that the jury would not have convicted appellant if the oral statement had been disclosed to the defense prior to trial. Any error by the prosecution given the facts of this case would be harmless. Without a showing of a willful violation of the discovery rules; or that foreknowledge of the statement prior to trial, as opposed to prior to putting forward the alibi theory, would have been helpful in preparing his defense; or, that appellant was prejudiced by the prosecution's action, we can not find an abuse of discretion. Appellant's second assignment of error is overruled. III DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant asserts that he was denied effective assistance of counsel because of the defense counsel's failure to file a motion to sever the defendants under Crim.R. 14. Appellant's argument is not well taken. 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. [Citations omitted.] - 15 - State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his [or her] client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. On the issue of counsel's effectiveness, the appellant has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. State v. Lytle (1976), 48 Ohio St.2d 391, 396-97. Appellant claims that he was prejudiced by his trial counsel's failure to file a motion to sever the defendants because Lance Carter's surprise guilty plea placed an undue burden on appellant's privilege not to take the stand in his own defense. This assertion is without logical support. Regardless of whether the defendants had separate trials, Lance Carter could have been put on the stand by the State to testify against appellant. Appellant's defense counsel was not under a duty to move for a motion to sever the defendants where it was not evident that appellant would be prejudiced by a joint trial under Crim.R. 14. Where his counsel did not violate any essential duty, appellant can not establish that he was denied effective assistance of counsel. Appellant further maintains that the prosecutor had the duty to prove that the defendants ought to be tried jointly as required in capital cases. This assertion is also without merit. Appellant - 16 - and his co-defendants were not charged with a capital offense. Aggravated murder is a capital offense as defined by R.C. 2901.02(B) only when one or more of the aggravating circumstances listed in R.C. 2929.04(A) are contained in the indictment. The prosecution was not under a duty to show why the defendants should be tried jointly. Appellant's third assignment of error is overruled. IV THE COURT ERRED IN FAILING TO ACQUIT DEFENDANT-APPELLANT WHERE INSUFFICIENT EVIDENCE WAS PRESENTED OF A PURPOSE TO AID AND ABET A CRIME. Appellant asserts that mere acquiescence in the commission of the crime was insufficient to support his conviction as an aider and abettor. Appellant's argument is not well taken. When reviewing an assertion that the conviction is not supported by sufficient evidence: An appellate court's function ... 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. State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. As stated above, the evidence of appellant's purpose to kill and commission of affirmative acts to aid and abet the murder of Junius Chaney is overwhelming. Five witnesses testified against appellant to establish that he owned the gun that killed Chaney; - 17 - went into his girlfriend's home following the altercation and retrieved his shotgun; made that shotgun available to Houston; accompanied Houston at least part of the way to Wilmore's home where Chaney was standing on the porch; drove from the scene of the murder with Houston in his truck; and, finally, disposed of the shotgun at a friend's home. We can not find that the evidence was insufficient to support appellant's conviction as an aider and abettor where the average mind, even the below average mind, would be convinced of appellant's guilt beyond a reasonable doubt. Appellant's fourth assignment of error is overruled. V THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT'S MOTION FOR MISTRIAL AFTER THE CO-DEFENDANT LANCE CARTER, PLEAD GUILTY IN THE MIDST OF TRIAL TO A LESSER OFFENSE AND WAS SENTENCED TO TIME SERVED AND THEN TESTIFIED, AS A STATE'S WITNESS, DENYING DEFENDANT-APPELLANT HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES. Appellant argues that he was surprised and prejudiced by Carter's testimony at trial. Appellant also asserts that the dismissal of the charges against Carter bolstered the testimony against him. Appellant's argument is not well taken. While the testimony against appellant was corroborated by Carter's testimony as a State's witness, the evidence to support his conviction was sufficient even without Carter's testimony. Dwayne Walker saw appellant give the gun to Houston, walk part way down the sidewalk with him and saw the three men drive away in appellant's truck. Mrs. LaGren saw the three men drive away in the - 18 - truck. Jackie Sanders heard appellant state that he was going to kill a nigger that night and later saw the three men drive away after hearing the shot fired. Finally, Michael Wilmore recognized the gun used to kill Junius Chaney as belonging to appellant. Appellant was not unfairly surprised nor prejudiced by Carter's defection from the defense table mid-way through the trial. Appellant's defense counsel was able to cross-examine Carter and establish the terms of his plea bargain with the State for the benefit of the jury. It was then the jury's job to assess Carter's credibility based upon his status as an ex-defendant in the case. The trial court did not abuse its discretion in denying appellant's motion for a mistrial after the dismissal of the aggravated murder charge against Carter. Appellant's fifth assignment of error is overruled. VI THE TRIAL COURT ERRED IN DENYING APPELLANT HIS RIGHT TO CONFRONTATION, BY LIMITING THE CROSS EXAMINATION OF STATE'S WITNESS JACKIE SANDERS, DENIED APPELLANT HIS RIGHTS, GUARANTEED BY THE VI AND XIV AMENDMENTS. Appellant raises this assignment of error in his supplemental brief filed pro se. Appellant claims that defense counsel was precluded from cross-examining Sanders as to her conviction for drug trafficking in 1993 when the court admonished counsel to, "Stick with the conviction, whatever it is." (Transcript p. 291). Appellant's assertion is not well taken. - 19 - When impeaching a witness pursuant to Evid.R. 609, a prior conviction is admissible evidence where the crime was punishable by death or imprisonment in excess of one year or if the crime involved dishonesty or false statement. However: Under Evid. R. 609, a trial court has broad discretion to limit any questioning of a witness on cross-examination which asks more than the name of the crime, the time and place of conviction and the punishment imposed, when the conviction is admissible solely to impeach general credibility. State v. Amburgey (1987), 33 Ohio St.3d 115, at the syllabus. In this instance the defense counsel was attempting to go into the details of the conviction. He asked Ms. Sanders whether the conviction was a result of a plea bargain, and the prosecution objected. The court then gave the limiting instruction to defense counsel quoted above. We find that the court did not abuse its broad discretion in thus limiting the line of questioning as it was being used to impeach Ms. Sander's credibility. Appellant's final assignment of error is overruled. Appellant's conviction and sentence for aggravated murder, including the firearm specification, are 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 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., AND KARPINSKI, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .