COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67049 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION WILBERT HOUSTON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-303894 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender ROBERT M. INGERSOLL, ESQ. JOHN R. KOSKO, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - KARPINSKI, J.: Defendant-appellant Wilbert Houston appeals from his conviction for the aggravated murder of Junius Chaney with an accompanying firearm specification. The record demonstrates that defendant, Kelvin Thompson, and Lance Carter were indicted jointly by the Cuyahoga County Grand Jury on November 17, 1993, for aggravated murder in violation of R.C. 2903.01 with an accompanying firearm specification. The charge arose out of the shotgun slaying of Chaney on the front porch of a residence, 10417 Crestwood Avenue in the city of Cleveland, at approximately 1:00 a.m. on November 5, 1993. Defendant pleaded not guilty to the charge and was appointed two defense counsel, who filed a series of pretrial motions. The matter ultimately proceeded to a jury trial against all three defendants commencing January 26, 1994. The prosecution presented testimony from the following nine witnesses to support the charges, viz.: (1-4) four residents who lived near the scene of the shooting, Louise LaGren, Michael Wilmore, Jackie Sanders and Dwayne "Tiny" Walker; (5) Deputy Coroner, Heather Raaf, M.D.; (6) Sharon Rosenberg, a forensic scientist employed by the coroner's office; (7) the victim's sister, Kim Starks; (8) Cleveland Police Detective Jack Bornfeld; and (9) codefendant Lance Carter. All four neighbors linked defendant to the shooting, although none of them fully observed the shooting. Walker - 3 - testified he observed the victim walk down the street after leaving Walker's residence and exchange words with the defendant. Walker stated he further observed codefendant Thompson obtain a shotgun from his girlfriend's residence and give it to defendant prior to the shooting. Wilmore testified the victim walked up to his front porch and the two began talking. Wilmore observed defendant approach and with a shotgun shoot the victim on Wilmore's front porch. Wilmore recognized defendant by his voice and identified defendant as the triggerman, but was unable to see defendant's face at the time he shot the victim. More than one witness testified that codefendant Carter was urinating in an open field at the time of the shooting. LaGren and Sanders observed defendant and codefendants Thompson and Carter drive away in Thompson's pickup truck following the shooting. Sanders added that defendant Thompson informed her earlier in the evening that he planned to kill someone. The record demonstrates that codefendant Carter pleaded guilty to a lesser charge during the course of trial and testified for the prosecution pursuant to a plea bargain. He pleaded guilty to obstruction of justice, and the aggravated murder charge was dismissed. Carter testified that defendant, admitting to shooting the victim as the trio was driving away from the scene in Thompson's pickup truck, stated: "I think I shot that motherfucker, I think I shot his ass." (Tr. 519.) - 4 - Codefendant Thompson presented testimony from two witnesses to support his alibi defense, viz., Patricia and Gregory Harrison. Defendant thereafter rested his case without presenting any witnesses. (Tr. 678.) The prosecution presented rebuttal testimony from Cleveland police detective Diane Parkinson concerning statements made by codefendant Thompson. The record demonstrates the trial court instructed the jury on aggravated murder, murder, and voluntary manslaughter following closing arguments. The jury returned a verdict finding defendant and codefendant Thompson guilty of aggravated murder of Junius Chaney as charged in the indictment, and the trial court entered judgment on defendant's jury conviction. In an order journalized on February 18, 1994, the trial court thereafter found defendant guilty of the firearm specification and sentenced defendant to life imprisonment for aggravated murder consecutive to three years actual incarceration for the firearm specification. Defendant timely appeals, raising three assignments of error by newly appointed appellate counsel and five assignments of error pro se. I. Defendant's first assignment of error by appellate counsel follows: WILBERT HOUSTON WAS DENIED HIS DUE PROCESS RIGHTS TO A FAIR TRIAL, WHEN THE TRIAL COURT PERMITTED LANCE CARTER TO TESTIFY AS STATE'S WITNESS, AFTER CARTER HAD SPENT THE MAJORITY OF THE STATE'S CASE AS A CO-DEFENDANT AND HAD HEARD BOTH THE STATE'S WITNESSES TESTIFY AND HAD HEARD THE ATTORNEY-CLIENT CONVERSATIONS OF MR. HOUSTON. - 5 - Defendant's first assignment of error by appellate counsel lacks merit. Defendant contends the trial court improperly denied his motion for mistrial prior to the testimony of former codefendant Carter. Defendant argues that permitting Carter to "switch sides" in the middle of trial was unfair and permitted Carter to manipulate his testimony after hearing testimony from other witnesses and defendant's attorney-client communications during trial. Based on our review of the record, defendant has failed to show the trial court abused its discretion or committed any error. As noted above, following the testimony of five witnesses at trial, Carter pleaded guilty pursuant to a plea bargain outside the hearing of the jury. (Tr. 437-444.) The record demonstrates that Carter agreed to testify truthfully in the case in return for dismissal of the aggravated murder charge against him and pleading guilty to the reduced charge of obstruction of justice. Following his plea, Carter did not sit with the remaining defendants. (Tr. 445-446.) After three additional witnesses concluded their testimony, Carter was the final witness called by the prosecution during its case in chief. Immediately prior to Carter's testimony, both defendant and codefendant Thompson moved for a mistrial. (Tr. 510-513.) Counsel for defendant argued that Carter had the opportunity to manipulate his testimony, since he had heard the testimony of the remaining witnesses and conversations of defense counsel during - 6 - trial. The trial court denied defendant's motion for mistrial and permitted Carter to testify. Defendant contends this court of appeals should presume that permitting Carter to testify constituted prejudicial error. Citing Wigmore on Evidence and several out-of-state cases, defendant argues that permitting a former codefendant to testify against the remaining defendants is analogous to permitting the codefendant to testify after violating a witness separation order and that prejudice should be presumed. It should be noted at the outset, however, that defendant's analogy to the violation of witness separation order is inapt. It is well established that parties to a case, as opposed to mere witnesses, may not be excluded pursuant to witness separation orders under Evid. R. 615. Lowery v. Lowery (1988), 48 Ohio App.3d 184. The record demonstrates Carter was a party defendant prior to testifying in the case and could not have been excluded from the courtroom pursuant to a pretrial witness separation order. Crim. R. 43(A). In fact, the record does not indicate the parties ever even requested a witness separation order or that the judge ordered it in this case. Finally, even if this court of appeals were persuaded by defendant's analogy, this court has recognized, contrary to defendant's argument, that a trial court may permit a witness to testify after violating a witness separation order. State v. Morris (1982), 8 Ohio App.3d 12, 17-18. Trial courts are not required to declare a mistrial in every case that a codefendant - 7 - enters a guilty plea during trial and testifies as a witness for the prosecution. State v. Burns (July 22, 1992), Summit App. No. 14883, unreported at p. 5 (opinion written by then Judge, now Justice, Cook). The record demonstrates that Carter's testimony generally corroborated that of the other four witnesses at the scene. The only additional information provided by Carter was his testimony that defendant admitted to shooting the victim while the trio fled the scene. (Tr. 519.) Counsel for both remaining defendants cross-examined Carter at length concerning his testimony and made the same arguments to the jury concerning the unreliability of Carter's testimony. (Tr. 525-595; 600-628.) Moreover, the trial court specifically instructed the jury to evaluate this testimony carefully. (Tr. 839-840.) Under these circumstances, defendant has failed to demonstrate the trial court abused its discretion by permitting Carter to testify or denying defendant's motion for mistrial. Accordingly, defendant's first assignment of error by appellate counsel is overruled. II. Defendant's second assignment of error by appellate counsel follows: WILBERT HOUSTON WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL BEFORE A JURY OF HIS PEERS, WHEN THE TRIAL COURT GAVE THE JURY AN IMPROPER INSTRUCTION ON HOW IT WAS TO CONSIDER A LESSER INCLUDED OFFENSE. Defendant's second assignment of error by appointed counsel lacks merit. - 8 - Defendant argues the trial court improperly instructed the jury to consider the charges against him in descending order of seriousness and to acquit him of more serious charges prior to considering lesser offenses. Defendant specifically complains the trial court improperly instructed the jury that it could not consider the offense of voluntary manslaughter until it found defendant not guilty of murder. As noted above, the record demonstrates the parties discussed proposed instructions with the trial court prior to closing arguments, and the court provided written copies of these instructions to each party. (Tr. 732-737.) The trial court thereafter charged the jury on the substantive offenses of aggravated murder, murder, and voluntary manslaughter as follows: Now, ladies and gentlemen, if the evidence warrants it you may find either or both of the defendants guilty of an offense lesser than charged in the indictment. However, notwithstanding this right, it is your duty to accept the law at [sic] given to you by the Court and if the facts and the law warrant a conviction of the offense of aggravated murder as charged in the indictment as to either defendant, then it is your duty to make such finding uninfluenced by your power to find a lesser offense as to that defendant. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent failure of justice if evidence fails to prove the original charge, but does justify a verdict of a lesser offense. Now the lesser included offense of murder, 2903.02. If you find that the state proved beyond a reasonable doubt all the essential elements of aggravated murder as to either defendant your verdict must be guilty of that offense as to that defendant. And in that event you will not consider any lesser - 9 - included offense for that defendant. You will not consider the other verdict forms if you find somebody guilty of aggravated murder. Not guilty aggravated murder. Now in that [sic] event you find that the state failed to prove prior calculation and design or if you are unable to unani- mously agree upon a verdict as to aggravated murder as to either defendant, you will proceed with your deliberations and decide whether the state has proven beyond a reasonable doubt the elements of the lesser included offense of murder as to that defendant or defendants if it's both. Murder distinguished. The offense of murder is distinguished from aggravated murder by the failure to prove the existence of prior calculation and design. To constitute murder it must be established that on or about the 5th day of November 1993, in Cuyahoga County, state of Ohio, either or both of the defendants, Kelvin Thompson and Wilbert Houston, purposely caused the death of Junius Chaney. Purpose and causation have been defined to you earlier. Now if you find that the state has proved beyond a reasonable doubt all of the essential elements of the offense of murder as a lesser included offense under this count of the indictment as to either defendant, your verdict must be guilty of the lesser offense of murder as to that defendant. In that event you will not consider any other lesser offense for that defendant. Not guilty verdict. Now if you find that the state failed to prove any one of the essential elements of the lesser offense of murder as to either defendant, you must find the defendant not guilty of the lesser offense of murder and you will proceed with you deliberation and decide whether the state has proved beyond a reasonable doubt the essential elements of the lesser offense of voluntary manslaughter as to that defendant. Now voluntary manslaughter. The second lesser offense possibility in violation 2903.03 of the Ohio Revised Code. If you find the state failed to prove any one of the essential elements of the offense of murder as to either defendant or if after exhausting all reasonable efforts to reach a verdict regarding the offense of murder, you are unable to agree unanimously - 10 - that either defendant is guilty of murder, then you will proceed with your deliberations and decide whether the state has proven beyond a reasonable doubt the essential elements of the crime of voluntary manslaughter as to that defendant. (Emphasis added.) (Tr. 851-854.) No party objected to the court's instruction or proposed any corrections to the court's charge. (Tr. 868.) Defendant's failure to object to the court's instructions in accordance with Crim. R. 30 precludes raising any claim of error for the first time on appeal. Even if defendant properly raised and preserved this argument in the trial court, defendant has failed to demonstrate reversible error. The Ohio Supreme Court has addressed this issue in State v. Thomas (1988), 40 Ohio St.3d 213. As in Thomas, the instruction in the case sub judice did not expressly require the jury to acquit defendant unanimously of the charge of murder before it could consider the lesser offense of voluntary manslaughter. Id.; State v. Wages (1993), 87 Ohio App.3d 780, 791-792. Under the circumstances, defendant has failed to demonstrate prejudicial error. Accordingly, defendant's second assignment of error by appellate counsel is overruled. III. Defendant's third assignment of error by appellate counsel and first assignment of error pro se contend he was denied the effective assistance of trial counsel as follows: WILBERT HOUSTON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL - 11 - DEFENDANT-APPELLANT WILBURT [SIC] HOUSTON WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL Defendant's third assignment of error by appointed counsel and first assignment of error pro se lack merit. Defendant's appellate counsel argues trial counsel's failure to object to the trial court's instructions above constituted ineffective assistance of counsel. Defendant pro se contends his trial counsel was ineffective by failing (1) to obtain a pretrial ruling on a motion to suppress pretrial statements by Carter, and (2) to request a separate trial. It is well established that to demonstrate ineffective assistance of trial counsel, defendant must demonstrate the following, viz.: (1) trial counsel's performance was deficient; and (2) prejudice resulted from trial counsel's deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136. Based on our review of the record in compliance with this standard, defendant has failed to demonstrate ineffective assistance by his trial counsel. As noted above, the trial court did not deliver erroneous "acquittal first" instructions in this case. Accordingly, defense trial counsel was not deficient by declining to object to the court's instructions, and, therefore, defendant can establish no prejudice regarding these instructions. Defendant's pro se arguments concerning the ineffective assistance of his two trial counsel likewise lack merit. The record demonstrates that defense trial counsel did not move to suppress a statement made by Carter despite receiving a copy of - 12 - Carter's statement during discovery. Defense counsel did file a motion to suppress, but it was limited to physical evidence obtained from defendant and did not address any statement by Carter. Defendant's appellate brief does not suggest how defendant had standing to raise any constitutional issue concerning Carter's statement. Finally, the prosecution never introduced any pretrial statements Carter made to the police. Accordingly, defendant has failed to demonstrate deficient performance or prejudice in connection with this issue. Defendant's claim that he was denied effective assistance of counsel because of counsels' failure to move for a separate trial is likewise unpersuasive. Contrary to defendant's argument, defendant was not entitled to a separate trial on the aggravated murder charge in this case, because the death penalty could not be imposed. State, ex rel. Corrigan v. McAllister (1985), 18 1/ Ohio St.3d 239; State v. Brooks, supra at 4. Trial counsel appears to have made a tactical decision not to request a separate trial. A decision to conduct a joint trial with other codefendants does not per se support his claim. Defendant must further demonstrate prejudice arising from a joint trial. He has not met this burden. All the evidence presented by the prosecution in this case would have been admissible in a trial against only the defendant. Moreover, the alibi evidence presented by codefendant Thompson did not implicate defendant in 1/ The law governing defendant's right to a separate trial is discussed further in Section VII, infra, at p. 17. - 13 - any way. Finally, the trial court specifically instructed the jury to evaluate the evidence separately against each defendant and determine each defendant's guilt or innocence separately. (Tr. 856.) Under the circumstances, defendant has failed to demonstrate deficient performance or prejudice. Accordingly, defendant's third assignment of error by appellate counsel and first assignment of error pro se are overruled. IV. Defendant's second assignment of error pro se follows: WAS THE VERDICT RESULTING IN A [SIC] DEFENDANT'S CONVICTION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE Defendant's second assignment of error pro se lacks merit. Defendant contends his jury conviction for aggravated murder is against the manifest weight of the evidence because there was no eyewitness testimony to establish he committed the shooting and no evidence that defendant acted with prior calculation and design. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of - 14 - justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. Based on our review of the record in compliance with this standard, defendant has failed to demonstrate his conviction was against the manifest weight of the evidence. As noted above, five witnesses in this case directly linked defendant to the shooting. Four residents of the neighborhood observed defendant's participation at various stages. Dwayne Walker testified he observed defendant receive a shotgun from codefendant Thompson. Michael Wilmore testified defendant, whom he recognized by voice but was unable to see, pumped the shotgun on Wilmore's porch and then shot the victim. Finally, former codefendant Lance Carter testified defendant admitted to shooting the victim as the trio fled the scene in a pickup truck after the shooting. The jury did not lose its way or create a manifest miscarriage of justice by finding from this evidence that defendant, with specific intent and prior calculation and design, purposely caused the victim's death by discharging the shotgun at the victim in close range. Accordingly, defendant's second assignment of error pro se is overruled. V. Defendant's third assignment of error pro se follows: WHETHER THE TRIAL COURT ERRED IN FAILING TO COMPLY WITH CRIMINAL RULE 12(E) - 15 - Defendant's third assignment of error pro se lacks merit. Defendant contends the trial court failed to rule, prior to trial, on his motions to suppress evidence and for separate trial. Defendant also complains the trial court did not specify its findings on the record concerning these two motions. Based on our review of the record, defendant has failed to demonstrate reversible error. Defendant complains the trial court did not properly journalize its ruling on his pretrial motion to suppress physical evidence obtained from him. Even if the trial court erred by failing to journalize this ruling or to state its factual findings, defendant has failed to demonstrate any prejudice, however. State v. Tolbert (1990), 70 Ohio App.3d 372, 388-389. Defendant does not contest the merits of the trial court's ruling denying his motion to suppress, and the record contains no evidence to warrant suppression of the evidence. Defendant's contention that the trial court failed to rule on his motion for separate trial misrepresents the record. The record demonstrates defendant never filed a motion for separate trial. As a result, the trial court did not commit any error by failing to consider or specify its findings concerning defendant's phantom motion for separate trial prior to commencing trial. Accordingly, defendant's third assignment of error pro se is overruled. VI. - 16 - Defendant's fourth assignment of error pro se follows: PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL Defendant's fourth assignment of error pro se lacks merit. Defendant contends the prosecutor committed misconduct by improperly (1) questioning former codefendant Carter during redirect examination concerning the credibility of other witnesses, and (2) stating personal opinions regarding defendant's guilt during final closing argument. Based on our review of the record, defendant's claims of misconduct by the prosecution lack merit. The record demonstrates that counsel for defendant asked former codefendant Carter to comment on the veracity of various witnesses during cross-examination. The prosecution merely responded in kind during the subsequent redirect examination of Carter. The challenged questioning was not improper. Moreover, defendant waived any claim of error by his counsel opening the door to this testimony. State v. Ferguson (1991), 71 App.3d 342, 348-349. Defendant contends the following statement improperly injected the personal opinion of the prosecutor during final closing argument: [Prosecutor]: *** You heard from Detective Bornfeld. You have got to chamber this, you've got to chamber the shell, the expended shell is here by pumping it. And it's only when you pump it, again, that shell comes out. Well, obviously he pumped it, again. Why is that significant? He was ready to drill him again. [Defense Counsel]: Objection. - 17 - [THE COURT]: Overruled. [Prosecutor]: Why would you pump it, again? He's ready to drill him one more time if he has to, but he doesn't have to because remember Dwayne Walker, I heard a shot and then a boom of the body hitting the ground. He hit the ground, good as dead. One shot was good enough. Wilbert Houston got it right on the mark the first time so he didn't need to use that second shell, but he was ready. [Defense Counsel]: Objection. [THE COURT]: Overruled. [Prosecutor]: So what is there to do then after you pump this shotgun shell into this guy? What do you do? You run away, you dispose of the weapon. All of that [sic] are elements which lead to the inference of a purpose to kill, a purpose to cause the death of Junius Chaney. *** A cursory examination reveals that the challenged comments constitute proper argument based on the evidence and not an improper statement of opinion by the prosecutor. Accordingly, defendant's fourth assignment of error pro se is overruled. VII. Defendant's fifth pro se supplemental argument does not contain a statement of the assignment of error but asserts generally that the trial court's failure to order separate trials in this case constitutes plain error pursuant to Crim. R. 52(B). Defendant cites State v. Henry (1983), 4 Ohio St.3d 44, for the proposition that defendants charged with aggravated murder are entitled to separate trials since aggravated murder constitutes a "capital offense." - 18 - However, the law governing the right to separate trials on aggravated murder charges has changed since State v. Henry. The Ohio General Assembly amended the definition of "capital offense" set forth in R.C. 2901.02(B) to include only those offenses for which the death penalty may be imposed. State, ex rel. Corrigan v. McAllister, supra. Since the death penalty may not be imposed for aggravated murder without an accompanying capital specification, defendants facing aggravated murder charges without such specifications are no longer entitled to separate trials under R.C. 2945.20 and Crim. R.14. See, id.; State v. Burns, supra at p. 4. As a result, the trial court did not commit "plain error" by conducting a joint trial in this case. Accordingly, defendant's fifth supplemental pro se argument is overruled. Judgment affirmed. - 19 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and DYKE, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and order of the court and the time period for review will begin to run. .