COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67199 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MARCELLUS GANT, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MAY 18, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-303244 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: A. Steven Dever Norman Kotoch Edward O. Patton Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, J.: Defendant-appellant Marcellus Gant appeals from his convictions for aggravated murder and aggravated robbery, with a felony murder and firearm specifications. Appellant's convictions stem from an incident which occurred at approximately 3:00 a.m. on the morning of October 23, 1993. At that time, two officers employed as policemen by the Cleveland Metropolitan Housing Authority ("CMHA") were in their zone car proceeding northbound from the Cleveland Police Department's ("CPD's") Second District station on Fulton Road in the city of Cleveland. At that time, the officers, David Bailey and Earl Brantley, observed a car which was being driven erratically. Suspecting the driver was intoxicated ("DUI"), they radioed the CPD to report their observation. They were still close to the station, thus, a CPD zone car quickly responded to their call. The CMHA officers then decided to assist the Cleveland police officers in stopping the DUI. The DUI pulled over shortly thereafter with the CPD patrol car just behind it on Fulton Road at Seymour Avenue. That location is just south of a bridge overpass which carries Fulton over Train Avenue. The CMHA officers stopped their zone car in front of the DUI. The two police cars' lights were flashing as they made the stop. One of the CPD officers, Nathaniel Oliver, proceeded to question the driver of the car and to give her a field sobriety test. When the driver failed the test, Oliver placed her in the -3- back of his zone car. He was about to enter the driver's side when he saw an old and rusty Cadillac stop next to his police car. A woman was driving. She was visibly upset and yelled "there's two 1 guys beating a guy on the bridge with a bat." CMHA Officers Bailey and Brantley were at their car facing south and heard the woman; Bailey also saw Oliver then look up toward the bridge and exclaim "There they are!" Oliver had seen two males running down the bridge toward them. Bailey turned then and also saw the running men. In addition, Bailey observed that what appeared to be a body was laying on the sidewalk of the bridge and that one of the males, later identified as appellant, seemed to be carrying a two to three foot long object behind his left leg as he ran. Oliver immediately told Bailey and Brantley to go ahead as he secured the DUI. The CMHA officers jumped into their car and proceeded northbound. They saw the males turn west onto Vega Avenue and run into the parking lot there. When they arrived seconds later, the males were in a car. The car's doors were shutting, the engine started and the car began to pull out of the lot. The CMHA officers quickly blocked the suspects' car with their own and leapt out of their vehicle with their weapons drawn. Bailey and Brantley ordered the males to stop and put their hands up. At first appellant, the driver of the car, did not comply; the CMHA officers could see the man next to him, later 1 Quotes indicate testimony given by a witness at appellant's trial. -4- identified as Derrick Flemming, talking and saw appellant making movements as if he was trying to place something under his seat. After the second command, however, appellant placed the car in park and Brantley was able to pull him from the vehicle and place him on the ground. Bailey was following the same procedure with Flemming when Oliver's zone car pulled up. A pat-down search of Flemming at that time revealed he was carrying a .25 caliber semi-automatic handgun in his jacket pocket. On the floor of the suspects' car, between the door and the driver's seat where appellant was sitting, was a baseball bat. Under the driver's seat officers later discovered a dark skull cap, a bandanna and a pair of goggles. While appellant and Flemming were being subdued, Oliver ran up onto the bridge to investigate the body seen on the sidewalk. The victim, later identified as Oreste Batista, a forty-two year old homeless man, was laying on his back. Several sundry objects were within a foot of him, viz., a baseball cap, a spent bullet casing, a comb, a business card from a nearby church, a cigarette lighter and some packages of cigarette papers. Oliver saw a bullet wound in the victim's forehead above his left eye; he was checking for the victim's pulse when a police cruiser being driver by officer David Reuse pulled up next to the sidewalk. Reuse had been on basic patrol in the area when he heard Oliver's broadcast about "males beating another male" on the Fulton Road bridge so he responded to the scene. He assisted Oliver in assessing the victim's condition. From the victim's weak vital -5- signs, his condition was obviously serious, thus, when the officers were informed that the Emergency Medical Service would be five to six minutes in arriving, they decided to transport him to the hospital themselves. Reuse and Oliver therefore picked the victim up and placed him in Reuse's cruiser. It took Reuse approximately two minutes to reach the hospital. While the victim was being administered to by the hospital staff, the two officers took an inventory of his belongings. They noted that he had a library card, from which they later determined his identity, a watch, a corkscrew and some keys, and a wallet which contained no money. At the scene of the incident, police officers were investigating and questioning appellant and Flemming. After being advised of their rights, both men separately made several statements concerning the shooting of the victim. Both men admitted attending a party together earlier in the evening and driving around together in Flemming's car after having consumed a lot of alcohol and smoked some drugs. They admitted seeing the police cars at the bottom of the bridge and parking the car before walking on the bridge. Both men also admitted the gun found in Flemming's pocket belonged to appellant; later investigation revealed appellant's gun had fired the pellet which entered the victim's forehead. The victim was pronounced dead at 6:10 a.m. on the morning of October 23, 1993. The coroner's autopsy revealed the victim died as a result of a gunshot wound to the head which had penetrated -6- into the brain. Other wounds of the same age on the victim's body were skull fractures and two abrasions on the upper left portion of his shoulder. The toxicologist's report revealed the victim's blood alcohol level as .17, which indicated the victim had consumed approximately eight cans of beer before his death. This amount of alcohol would have caused a loss of muscular coordination. Appellant and Flemming were subsequently both indicted in connection with the incident. Appellant was charged with two 2 counts of aggravated murder, R.C. 2903.01, and one count of aggravated robbery, R.C. 2911.01. Count two carried a firearm and a felony murder specification. Count three carried a firearm specification. Flemming was tried first. He was found guilty and thereafter received a death sentence. The record reflects appellant's trial commenced approximately a month after Flemming's sentencing. The state presented the testimony of the following witnesses: 1) the deputy coroner who performed the autopsy on the victim; 2) CMHA officers Bailey and Brantley; 3) CPD officers Oliver and Reuse; 4) the victim's ex-wife, 4) CPD Det. Thomas Lucey, who performed the ballistics tests on the weapon; 5) Derrick Flemming; and 6) CPD Det. Gregory Kunz, who was in charge of the investigation of the incident. Flemming essentially testified he and appellant were in the area of the Fulton Road bridge at 3:00 a.m. on October 23, 1993 2 Count one was dismissed prior to trial. -7- "looking for girls" and that the victim had fought with him when they encountered each other on the sidewalk. At one point during Flemming's direct testimony, the prosecutor requested the trial court to declare Flemming a hostile witness pursuant to Evid.R. 611. The trial court granted the motion over defense counsel's objection. Thereafter, also over objection, the prosecutor was permitted to ask Flemming questions concerning the statements he had made to the police on the morning of the incident. Det. Kunz then also testified about those statements. After his Crim.R. 29 motion for acquittal was overruled, appellant testified in his own behalf. On cross-examination, appellant stated he had been close friends with Flemming for over five years. He stated he left his gun in Flemming's car the day before the shooting and had told Flemming to bring it to the party they were planning to attend that night. Appellant stated he met up with Flemming at the party, where they did a lot of drinking and smoked some marijuana. They went out to Flemming's car at about 12:30 a.m. and continued their activities for a time before they decided to leave and "ride around." Appellant took over as driver sometime after they headed for the west side of Cleveland. He stated they stopped to buy cigarettes, then alcohol, then gasoline during this course of time and admitted they were nearly out of money after these stops. Appellant stated he was heading home to East Cleveland when he drove over the Fulton Road bridge. He said Flemming told him to park the car in the lot at Vega because of the police cars he saw -8- on Fulton Road; Flemming's car had stolen license plates. Appellant stated they walked up on to the bridge and encountered the victim, who was not "bothering anyone." Appellant denied seeing Flemming shoot the victim; he stated he had turned and the "gun went off." He admitted they then both fled to Flemming's car. He also admitted that he lied to Det. Kunz in some of the statements he made on the night of the incident. Subsequently, the jury found appellant guilty of aggravated murder with a felony murder and a firearm specification and guilty of aggravated robbery with a firearm specification. After a presentence investigation and report, the trial court sentenced appellant to consecutive terms of incarceration of life with parole eligibility after twenty years and nine to twenty-five years. I. Appellant presents four assignments of error for this court's review. The first two concern similar issues; thus, they are addressed together. I. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO IMPEACH ITS OWN WITNESS THROUGH THE USE OF ANOTHER STATE WITNESS, AND BY ALLOWING EVIDENCE PRESENTED FOR IMPEACHMENT PURPOSES TO BE USED AS SUBSTANTIVE EVIDENCE. II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A) AS HIS CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO LAW. A. THE TRIAL COURT ERRED IN ADMITTING THE HEARSAY STATEMENT OF AN UNIDENTIFIED FEMALE MOTORIST UNDER RULE 803(A), OHIO RULES OF EVIDENCE. -9- In these assignments of error, appellant argues that certain evidentiary rulings made by the trial court during his trial were improper and ultimately led to his convictions. First, appellant contends the trial court failed to comply with the applicable rules of evidence when it permitted the prosecutor to impeach Derrick Flemming's testimony regarding Flemming's actions and intentions toward the victim on the night of the incident. It is appellant's position that this impeachment was then used as substantive evidence to prove an element of the crimes, viz., the intent to rob the victim. Generally, evidentiary rulings made at trial rest within the sound discretion of the trial court. State v. Lundy (1987), 41 Ohio App.3d 163; State v. Graham (1979), 58 Ohio St.2d 350. The decision to permit the use of leading questions to a party's own witness will not be reversed absent a showing of an abuse of discretion. Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97; State v. Miller (1988), 44 Ohio App.3d 42; State v. Madden (1984), 15 Ohio App.3d 130. In this case, the trial court noticed Flemming's demeanor and his manner of answering the prosecutor's questions were so antagonistic as to require several reprimands from the bench. Clearly, Flemming was a hostile witness, therefore, the trial court did not abuse its discretion in declaring him to be. After this point in the trial, Flemming related his version of the details surrounding the shooting of the victim. -10- Flemming stated he and appellant stopped in the parking lot to chase after some girls they had seen on the bridge and that, after the girls ran away, he and appellant were walking back to the car when the victim "pushed through" them. Flemming stated an altercation ensued, with the victim physically fighting with him and getting him in a "headlock" so tight Flemming was passing out while appellant stood by, "giggling." Thus, Flemming essentially stated he shot the victim in self-defense. When the prosecutor then asked whether Flemming had stated the details differently to the police officers that night, Flemming categorically stated "No." It was his testimony that the statements he made to the officers "never happened." On cross-examination, Flemming also stated his testimony was "identical" to his testimony at his own trial. Evid.R. 607 states: RULE 607. Who may Impeach The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Rules 801(D)(1)(a), 801(D)(2), or 803. (Emphasis added.) The existence of surprise is a factual matter left to the trial court's discretion. Ferguson Realtors v. Butts (1987), 37 Ohio App.3d 30; State v. Moore (1991), 74 Ohio App.3d 334; Dayton v. Combs (1993), 94 Ohio App.3d 291. Surprise exists when the party calling the witness can demonstrate that the witness' testimony on the stand is materially inconsistent with his prior -11- written or oral statements and counsel did not have reason to believe the witness would recant when called to testify. State v. Stearns (1982), 7 Ohio App.3d 11; State v. Warren (1990), 67 Ohio App.3d 789; Dayton v. Combs, supra. In this case, it is clear the prosecutor expected Flemming to testify, as he did at his own trial, merely that he "didn't recall" making statements to the police officers the night of the shooting that he and appellant were on the west side looking for someone to rob and that he would have "popped" some officers, too, if he had had the opportunity. The record reveals the prosecutor had no reason to believe Flemming would testify differently at appellant's trial. State v. Moore, supra; Dayton v. Combs, supra; cf., State v. Liberatore (1982), 69 Ohio St.2d 583; State v. Holmes (1987), 30 Ohio St.3d 20; State v. Warren, supra. Flemming's bald assertion that he made no statements to the officers that night, however, was both unexpected and materially inconsistent with his testimony at his own trial. Up to that point, the state's witnesses had given evidence which indicated Flemming and appellant beat and attempted to rob the victim before shooting him. Flemming's testimony injected completely different facts which obviously would tend to damage the state's case. Thus, surprise and affirmative damage existed sufficient to justify the trial court's decision to permit the prosecutor to impeach -12- 3 Flemming's credibility through the testimony of Det. Kunz. State v. Stearns, supra; State v. Moore, supra; Dayton v. Combs, supra; cf., State v. Keenan (1993), 66 Ohio St.3d 402; State v. Warren, supra; State v. Blair (1986), 34 Ohio App.3d 6. Appellant's assertion that the impeachment testimony was used as substantive evidence is apparently based on the trial court's statement that it was permitting Det. Kunz's testimony on the basis of Evid.R. 801(D)(1)(a). The record reveals the trial court was permitting the questions after reviewing the testimony Flemming gave at his own trial. Evid.R. 801(D)(1)(a) permits the introduction of prior statements given by a witness under oath, declaring them to be "not hearsay," and, thus, permitting them to be introduced. See, e.g., State v. Riggins (1986), 35 Ohio App.1. Moreover, when the trial court declared it was permitting Det. Kunz to testify concerning the statements Flemming made to him the night of the incident, it is clear from the record the trial court was doing so only for the purposes of impeachment; indeed, it later so instructed the jury. Cf. State v. Lewis (1991), 75 Ohio App.3d 689. Thus, the evidence was not used substantively and the trial court did not abuse its discretion in admitting it. Dayton v. Combs, supra; State v. Moore, supra; cf., State v. Dick (1971), 27 Ohio St.2d 162. 3 The record reveals the prosecutor laid the proper foundation before admitting extrinsic evidence of Flemming's prior inconsistent statements to Det. Kunz pursuant to Evid.R. 613(B). State v. Theuring (1988), 46 Ohio App.3d 152; State v. Riggins (1986), 35 Ohio App.3d 1. -13- In his second assignment of error, appellant challenges the trial court's decision to admit the unidentified woman's statement when she told the officers at the scene of the DUI that "two guys are beating a guy on the bridge with a bat." Appellant also claims that without this evidentiary ruling, the state's evidence would have been insufficient to prove his guilt of the two crimes. This court does not agree with either assertion. The trial court permitted introduction of the woman's statement pursuant to Evid.R. 803(1), "Present sense impression." Regarding a statement entered into evidence pursuant to this rule, the court in Cox v. Oliver Machinery Co. (1989), 41 Ohio App.3d 28, stated the following: The principle underlying this hearsay exception is the assumption that statements or perceptions, describing the event and uttered in close temporal proximity to the event, bear a high degree of trustworthiness. The key to the statement's trustworthiness is the spontaneity of the statement, either contemporaneous with the event or immediately thereafter. By making the statement at the time of the event or shortly thereafter, the minimal lapse of time between the event and statement reflects an insufficient period to relect (sic) on the event perceived, -- a fact which obviously detracts from the statements trustworthiness. (Emphasis added.) Since the officers looked up immediately upon hearing the woman's exclamation and saw the males running from the victim's body, only a few moments could have passed between the time the woman saw the beating and her statement to the police. Thus, not only was there no time for reflection, but the statement was also -14- immediately corroborated; hence, it was sufficiently trustworthy 4 and fit within the requirements of Evid.R. 803(1). Moreover, this was not the only evidence provided which established the requisite elements to prove aggravated murder and aggravated robbery. The coroner established the abrasive wounds on the victim were consistent with being hit with a baseball bat and the gunshot wound was the cause of death. Officers Bailey and Oliver both saw appellant and Flemming fleeing from the area where the victim lay; Bailey even saw appellant carrying a "long object" behind his leg as he ran. Minutes later, after their apprehension, a baseball bat was found next to appellant in the car and Flemming had the murder weapon, which belonged to appellant, in his pocket. The victim, laying on the sidewalk, was surrounded by his personal items, which had no pecuniary value. Viewing the evidence adduced at appellant's trial in a light most favorable to the prosecution, therefore, any rational trier of fact could have found the essential elements of aggravated murder and aggravated robbery proven beyond a reasonable doubt. State v. Taylor (1993), 66 Ohio St.3d 295; State v. Anderson (May 12, 1994), Cuyahoga App. Nos. 65378, 65379, unreported; State v. Burford (Dec. 9, 1993), Cuyahoga App. No. 64432, unreported. For the foregoing reasons, the trial court did not err in either the evidentiary rulings it made in this case or in denying 4 The evidence also supported a finding that the statement qualified as an "excited utterance" pursuant to Evid.R. 803(2). State v. Moorman (1982), 7 Ohio App.3d 251; State v. Abercrombie (Aug. 26, 1993), Cuyahoga App. No. 63695, unreported. -15- appellant's motion for acquittal. Accordingly, appellant's first two assignments of error are overruled. II. Appellant's third assignment of error states: DEFENDANT-APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that based upon the totality of the evidence no reasonable jury could have found him guilty of the offenses charged. His argument is not persuasive. In State v. Martin, supra, at 175, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: 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 such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks (1991), 61 Ohio St.3d 259. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the -16- trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A review of the record in this case demonstrates appellant's convictions for the aggravated robbery and aggravated murder by the shooting of the victim were in accord with the manifest weight of the evidence. The testimony of the state's witnesses created a scenario which fit together and was corroborated by the coroner's report, trace evidence findings, and physical evidence discovered. Appellant's evidence, on the other hand, was both inconsistent with his earlier statements and often impeached on cross-examination. In short, there was consistent, credible evidence adduced at trial in this case which supported the jury's conclusion that appellant and Flemming were involved in a plan to shoot and rob the victim on October 23, 1993. State v. Coleman (1988), 37 Ohio St.3d 286; State v. Anderson, supra. In stating this, this court is mindful that an appellate court need not subject circumstantial evidence of guilt to a standard of proof other than proof beyond a reasonable doubt. State v. Jenks, supra; State v. Tinch (1992), 84 Ohio App.3d 111. The record in this case reflects that weighing all the evidence, drawing all the reasonable inferences therefrom and considering the testimony and credibility of the state's witnesses and the appellant, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. State v. Martin, supra. -17- Accordingly, appellant's third assignment of error is also overruled. III. Appellant's fourth assignment of error states: DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE OFFENSE OF VOLUNTARY MANSLAUGHTER, A LESSER INCLUDED OFFENSE. In this assignment of error, appellant argues the trial court improperly instructed the jury; he contends the evidence adduced at trial warranted an instruction on voluntary manslaughter. Upon a review of the record, this court finds appellant's contention to be groundless. An instruction on a lesser included offense is appropriate only where "the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required to prove the commission of the lesser included offense and for the state on the elements required to prove the commission on the lesser offense." State v. Solomon (1981), 66 Ohio St.2d 214, paragraph two of the syllabus. It is thus within the discretion afforded a trial court to refuse to instruct the jury on a lesser included offense. State v. Dawson (Nov. 18, 1993), Cuyahoga App. No. 63122, unreported. It is appellant's position that Flemming's testimony established the shooting of the victim was brought on by "provocation" sufficient to incite him into using deadly force, -18- therefore, the trial court should have included an instruction on voluntary manslaughter, R.C. 2903.03(A). In this case, in spite of Flemming's essentially uncorroborated and incredible testimony, there was not a scintilla of evidence that the victim either provoked him or that he was under the influence of a sudden passion or a sudden fit of rage. Rather, the gist of Flemming's testimony was that he had been drinking and smoking marijuana, he was out of money, and he was merely spoiling for a victim to locate. This scenario was corroborated by other testimony in the case. Since the evidence adduced at trial thus did not support the elements of the crime of voluntary manslaughter, the trial court committed no error in failing to instruct the jury on this offense. State v. Underwood (1983), 3 Ohio St.3d 12; State v. Dawson, supra; cf., State v. Williford (1990), 49 Ohio St.3d 247. Accordingly, appellant's fourth assignment of error is also overruled. Appellant's convictions and sentences are affirmed. 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. MATIA, DAVID T., P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .