COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67732 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION PABLO TORREZ, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 24, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-257736 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Richard J. Bombik Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James A. Jenkins 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 Regis E. McGann 450 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -3- NAHRA, J.: Defendant-appellant Pablo Torrez appeals from his conviction for murder with a firearm specification. The evidence presented by the state at appellant's trial indicated appellant's conviction resulted from the following sequence of events which took place on the evening of September 11, 1990. On that day, Miguel Colton, Derrick Turner (a.k.a. "Bear"), Alphonso Alescia and the victim, Brian Ownes (a.k.a. "Zone"), all members of a gang known as the "Folks," met at a friend's house on W. 81st Street near Madison Avenue in Cleveland to lift weights. At approximately 6:00 p.m., a girl known to them as "Smurf" appeared at the house and notified them that some members of a 1 rival gang were "tagging" in their neighborhood. The Folks members understood this to mean that the rival gang's members were putting graffiti "disrespectful" of their gang on a wall. The Folks decided to investigate the report. As they left the house, they walked northward on W. 81st Street. From their vantage point, they saw W. 81st Street's intersection with Madison Avenue and observed two men, later identified as Jose "Chaz" Mercado and appellant, spray painting a 1 Quotes indicate testimony given by a witness at appellant's trial. -4- wall of one of the buildings located there. Mercado and appellant were putting symbols on the wall which indicated their names, their gang affiliation, and the words "Folks Killers." As the four Folks continued to walk toward them, Mercado and appellant stopped what they were doing and ran, disappearing from view. The four Folks began to cross W. 81st as they approached Guthrie Avenue, a side street just south of Madison. The victim, Owens, was close to the west side of the street when suddenly a burgundy car with Mercado driving and appellant in the front seat "flew around the corner" of Guthrie onto W. 81st and came at them. Alescia and Colton quickly jumped back to the east side of W. 81st; Turner, who was on crutches, was still on the sidewalk a little distance behind Alescia and Colton. The car slowed as the Folks members separated. When it did so, Owens approached it and began fighting with Mercado through the open driver's side window. The two were exchanging punches as Colton threw rocks at the still-rolling car. While this was occurring, appellant suddenly began "bouncing around in the car." He "got up on [his] seat" as he "turned around" to the back seat and "started looking for something." When he turned back again, Alescia shouted to his friends to get away. Colton obeyed; however, Owens, who was continuing to grapple with Mercado "didn't have no time." Appellant "reached over [Mercado] -5- and shot Zone" at close range in the chest. Then the car sped away. Owens stood for a moment, apparently in shock, then screamed. At that, Turner dropped his crutches and went forward as fast as he was able to catch Owens as the victim collapsed. Turner supported Owens the short distance to Alescia, who stood in a nearby driveway. Then, at Colton's direction, Turner left to inform other gang members of the incident by appropriating a bicycle and pedaling away with one leg. Shortly thereafter, police and EMS responded to the scene. Owens was transported to the hospital, where he was pronounced dead at 6:42 p.m. A detective of the Cleveland Police Department's Scientific Investigation Unit ("SIU") took photographs of the crime scene. Detective Reese, who arrived at the scene at approximately 7:45 p.m., interviewed some witnesses and also discovered that Alescia and Colton had been taken to the First District police station; therefore later that night Reese spoke to them. Thus, he obtained information about the suspects involved in the shooting and their car. The following day, Mercado was arrested. That same day, at two separate times, police officers took photographs of the wall appellant and Mercado had been seen spray-painting. By the time -6- the second set of photographs were taken, Folks members had painted over their rivals' graffiti. The autopsy of Owens revealed he had expired from internal bleeding after a single gunshot wound to the left chest, despite medical efforts to save his life. From the fouling and stippling surrounding the wound, the assistant coroner who performed the autopsy determined a muzzle-to-target distance of between six inches and two feet. On October 1, 1990, Mercado and appellant were indicted together for aggravated murder, R.C. 2903.01, with a firearm specification. The record reflects Mercado was eventually convicted of voluntary manslaughter in connection with the shooting. However, despite the creation of a composite drawing based on witness' descriptions and a capias for his arrest, police efforts to locate appellant were unavailing. So too were efforts to locate Turner. The capias on appellant was finally returned on April 26, 1994. At his arraignment, appellant entered a plea of not guilty to the aggravated murder charge. Appellant's trial commenced on July 11, 1994. On that day, the prosecutor notified the trial court on the record that Colton had just informed him that there was a possibility Turner could be located. The prosecutor thus informed both the court and the -7- defense that if Turner was found he would be called as a witness. Defense counsel objected. The prosecution then presented its case-in-chief, calling the following as its witnesses: 1) Dr. Challener, the assistant county coroner who performed the autopsy on Owens; 2) Det. Reese; 3) Bonnie Rudolph, the SIU detective who had taken the photographs of the crime scene after Owens was transported to the hospital; 4) Derrick Turner; and 5) Miguel Colton. The state also introduced the following exhibits into evidence: 1) the autopsy protocol, 2) photographs taken of the victim at the assistant coroner's direction; 3) the photographs taken of the crime scene; 4) photographs of the spray-painted wall; and 5) a photograph of Mercado taken for identification purposes. Appellant then made a Crim.R. 29 motion for acquittal. The trial court granted the motion with respect to the charge of aggravated murder; the court ruled the state had failed to provide sufficient evidence on the element of prior calculation and design. Thus, trial proceeded on the lesser-included charge of murder, R.C. 2 2903.02, with a firearm specification. 2 R.. 2903.02 states in pertinent part: 2903.02 Murder. (A) No person shall purposely cause the death of another. -8- Appellant testified in his own behalf. His version of the details of the shooting differed from the version described by Turner and Colton. Appellant admitted that in September 1990 he had been a member of a gang known as the "Rice and Beans," a junior part of a gang called the "Kings" who were rivals of the Folks. He stated on the day of the shooting, he had been driving around with Mercado, who was already a "King," initially submitting job applications and, later, spray-painting walls. Appellant testified that his gang did not engage in any violent activities and denied that the symbols he painted had either any meaning or portrayed any threats to other gangs. According to appellant, however, the painting was a form of initiation to the Kings. Appellant testified that although the car was Mercado's, he and Mercado took turns driving it and also took turns spray- painting. He further stated he was driving after painting the wall at Madison and W. 81st, he turned the corner at Guthrie and W. 81st about twenty minutes later, he was proceeding slowly, and the Folks suddenly stepped out from between cars and began throwing "bricks" at them. Appellant testified he "ducked," heard a sound "behind his head," and realized Mercado had "popped a shot." He stated he did not know Mercado had pulled out a gun until they had left the area. Appellant also testified that after he found out about -9- Owens' death, he went to live in another state because he was "afraid" of Mercado. The jury ultimately found appellant guilty of murder with a firearm specification. The trial court thereafter sentenced appellant to a term of three years actual incarceration to be served prior to and consecutive with a term of fifteen years to life. I. Appellant, by and through counsel, presents seven assignments 3 of error for this court's review. His first, second, third and seventh are addressed together as follows: I. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE TESTIMONY OF DERRICK TURNER (A.K.A. "BEAR"), WHOSE NAME WAS NOT PROVIDED COUNSEL FOR DEFENDANT/APPELLANT PRIOR TO TRIAL. II. PERMITTING A COMPOSITE SKETCH OF THE ALLEGED ASSAILANT TO BE SHOWN TO WITNESSES WITHOUT A PROPER 3 Only twelve days prior to the date set for hearing, and without requesting leave to do so, appellant also filed in this court a lengthy, unsigned "supplemental" pro se brief. Therein, he raises eleven further assignments of error; these are set forth in the appendix to this opinion. As acknowledged by appellant, his pro se brief fails to comply with the appellate rules of procedure in several flagrant respects. Nevertheless, despite his brief's shortcomings, this court has reviewed appellant's "supplemental" assignments of error and finds no merit to any of them; appellant introduces no issues of substance this court may consider which are not already adequately and competently covered in the brief filed earlier by appellate counsel. -10- FOUNDATION WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT, HIGHLY PREJUDICIAL TO THE DEFENDANT/APPELLANT, AND REVERSIBLE ERROR. III. IT WAS ERROR FOR THE TRIAL COURT TO PERMIT THE PLAINTIFF/APPELLEE TO INTRODUCE THE CORONER'S PHOTOGRAPH (EXHIBIT 3) DEPICTING SURGERY PERFORMED ON THE VICTIM. VII. THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE ADMISSION OF CARLOS RODRIGUEZ, JR.'S STATEMENT WHEN THE WITNESS WAS UNAVAILABLE. In these assignments of error, appellant challenges certain evidentiary rulings made during trial. First, appellant argues the state failed to comply with the requirements of Crim.R. 16(B)(1)(e); therefore, the trial court should not have permitted Derrick Turner to testify. The record does not support appellant's argument. Although Crim.R. 16(B)(1)(e) requires the prosecutor to "furnish to the defendant a written list of the names and addresses of all witnesses whom [he] intends to call at trial," the transcript of proceedings reveals not only that Turner was not a potential witness until the day before appellant's trial commenced, but that the prosecutor did not fail to comply with discovery. Turner's whereabouts had been unknown for four years, despite the continuing police investigation of the murder. Only in preparing Colton for trial did the prosecutor become aware that Colton could possibly locate Turner and persuade him to appear as a witness for the state. The prosecutor stated on the record he immediately -11- informed defense counsel of this development. Defense counsel agreed with the prosecutor's statement and admitted the prosecutor had also otherwise fully complied with discovery. Thus, it is clear no real violation of Crim.R. 16(B)(1)(e) occurred. See, e.g., State v. Parker (1990), 53 Ohio St.3d 82; cf. State v. Wilson (1993), 91 Ohio App.3d 611. Moreover, even if Crim.R. 16 is violated, the trial court is vested with the discretion to admit evidence at its option. Crim.R. 16(E)(3); State v. Parson (1983), 6 Ohio St.3d 442. No error occurred in the admission of Turner's testimony, therefore, absent a showing the trial court abused its discretion, i.e., its decision reflects an unconscionable, unreasonable or arbitrary attitude. State v. Adams (1980), 62 Ohio St.2d 151; State v. Jenkins (1984), 15 Ohio St.3d 164. In this case, the record reflects that when Turner appeared for trial, defense counsel failed to take advantage of an opportunity to interview him prior to his testimony on the stand. See, e.g., State v. Adkins (1992), 80 Ohio App.3d 211. Nevertheless, before allowing Turner to testify, the trial court permitted defense counsel to conduct an extensive voir dire. Moreover, at this stage of the proceedings, the trial court conducted its own examination of both Turner and Det. Reese in order to satisfy itself that Turner's appearance was a surprise and -12- the state had fully complied with discovery requirements. The trial court then requested the prosecutor to state his good faith on this issue for the record. Finally, the trial court stated it was satisfied there had been no failure to comply with discovery and no unfairness to the defense. Under these circumstances, the trial court did not abuse its discretion in allowing Turner to testify at appellant's trial. State v. Parson, supra; State v. Brown (1993), 85 Ohio App.3d 716; cf. State v. Moore (1988), 40 Ohio St.3d 63; State v. Wilson, supra. Therefore, appellant's first assignment of error has no merit. Appellant next contends it was error for the prosecutor to show a composite drawing to witnesses at trial. Although the drawing was never either admitted into evidence or shown to the jury, appellant apparently contends the witness' identification of him at trial as the perpetrator of the crime was somehow "tainted" by their viewing of it. This court cannot agree. The record reflects Det. Reese identified the drawing as one done at the direction of Colton and Alescia, eyewitnesses to the shooting of Owens. Reese stated merely that it was thereafter used in police efforts to locate appellant. Moreover, Turner positively identified appellant as the shooter on direct examination; the drawing was shown to him only on -13- redirect examination and after defense counsel questioned him regarding the positiveness of his previous identification and his memory of appellant's appearance at the time of the shooting. A review of the record fails to demonstrate any "improper influence" or "suggestion" as contemplated by Stovall v. Denno (1967), 388 U.S. 293 occurred in this case. State v. Parker, supra. Therefore, appellant's second assignment of error is meritless. Citing Evid.R. 403(A), appellant asserts in his third assignment of error that the admission into evidence of one of the autopsy photographs was prejudicial. However, the admission of photographic evidence is a decision left to the discretion of the trial court. State v. Jackson (1991), 57 Ohio St.3d 29. In State v. Maurer (1984), 15 Ohio St.3d 239, the court stated the following: Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number. Id. at paragraph seven of the syllabus. -14- In this case, the challenged autopsy photograph shows the entrance wound sustained by the victim was nearly obliterated by a subsequent surgical incision; thus, it illustrates the testimony of Dr. Challener, who stated he initially had difficulty in locating the wound. Moreover, since the photograph is taken from a different perspective from the others, it is neither repetitive nor cumulative. Therefore, the trial court did not abuse its discretion in admitting this evidence. State v. Morales (1987), 32 Ohio St.3d 252 at 257-258; cf., State v. Watson (1991), 61 Ohio St.3d 1 at 7. Lastly, appellant contends in his seventh assignment of error that the trial court improperly refused to admit into evidence the written statement of a witness, Carlos Rodriguez. Without being specific, appellant asserts the statement was admissible pursuant to Evid.R. 804. This court disagrees. The record reflects the police, while investigating the shooting in September 1990, took a statement from Carlos Rodriguez. Rodriguez lived in a house near the location of the incident; Owens collapsed in the driveway of that house. Neither the prosecution nor the defense could locate Rodriguez at the time of appellant's trial; thus, he was "unavailable" pursuant to Evid.R. 804(A)(5). However, although a review of Rodriguez's statement reveals its exculpatory nature, it fails to comport with any of the -15- exceptions to the hearsay rule listed in Evid.R. 804(B). The statement is thus classic hearsay as defined by Evid.R. 801(C), and was not admissible pursuant to Evid.R. 802. Therefore, the trial court did not err in excluding it from evidence. See, e.g., State v. Houston (1985), 26 Ohio App.3d 26; Hatfield v. Andermatt (1988), 54 Ohio App.3d 188; cf. State v. Bragg (1981), 2 Ohio App.3d 193. For the foregoing reasons, appellant's first, second, third and seventh assignments of error are overruled. II. Appellant's fourth assignment of error states: IV. IT WAS PROSECUTORIAL MISCONDUCT AND AN ABUSE OF DISCRETION BY THE TRIAL COURT TO PERMIT QUESTIONING OF DEFENDANT/APPELLANT ABOUT HIS PRIOR EMPLOYMENT. Appellant argues his conviction should be reversed based upon certain questions asked of him by the prosecutor on cross- examination. Generally, conduct of the prosecutor at trial shall not be a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. Appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In -16- analyzing whether appellant was deprived of a fair trial, this court must determine whether absent the improper questions or remarks, the jury would have found appellant guilty. State v. Maurer, supra, at 267. Appellant asserts the following exchange while he was testifying, which is quoted in context, constitutes reversible error: Q. And you decided that on September 11, you were going to hang out with Chaz on that day? A. Yes. You can say that. Q. When did you begin on that day hanging out with Chaz? A. When he picked me up. Q. Is that in the morning? A. Afternoon, like 12, 1:00. Q. Around 12:00? A. A little bit after 12:00. Q. Incidentally, were you working anywhere at that time, Mr. Torrez? A. No. Q. When was, prior to September 11, 1990, when was the last time that you were gainfully employed. MR. JENKINS: Objection. THE COURT: Overruled. A. Never. -17- Q. How were you supporting yourself? A. Like I said, we threw parties. Q. You support yourself through parties? A. We deejay parties and the money that we would use. Q. So he picked you up in? Where did he pick you up? Where you were living? A. Yes. (Emphasis added.) Initially, this court notes appellant opened the door to this line of inquiry when on direct examination he testified that Mercado was helping him look for a job on that day and then, later, that after the shooting he went out-of-state and worked as a carpenter's helper. State v. Ferguson (1991), 71 Ohio App.3d 342. Secondly, when reviewed in context, it is clear the exchange was very brief and the prosecutor immediately proceeded to another line of inquiry. In light of the totality of the evidence against appellant, such a minor episode cannot be considered to rise to the level of reversible error. State v. Boulabiez (1994), 92 Ohio App.3d 238; State v. DeBoue (Mar. 11, 1993), Cuyahoga App. No. 61954, unreported. A review of the record thus fails to indicate the prosecutor's question substantially prejudiced appellant and denied him his right to a fair trial. -18- Error, if any, was harmless beyond a reasonable doubt. State v. Maurer, supra; State v. Jenks (1991), 61 Ohio St.3d 259; State v. Vrona (1988), 47 Ohio App.3d 145. Accordingly, appellant's fourth assignment of error is overruled. III. Appellant's fifth assignment of error states: V. THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT OF ACQUITTAL AND BY ALLOWING THE VERDICT TO STAND WHICH WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE. Appellant apparently argues the evidence adduced at trial was 4 sufficient to prove only the offense of voluntary manslaughter. This court does not agree. According to Crim.R. 29(A), a motion for judgment of acquittal may be granted if the evidence is insufficient to sustain a conviction on the offense charged. If, however, reasonable minds can reach different conclusions as to whether each element of an 4 R.C. 2903.03 states in pertinent part: 2903.03 Voluntary manslaughter. (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. -19- offense has been proven beyond a reasonable doubt, the motion must be overruled. State v. Bridgeman (1978), 55 Ohio St.2d 261. An appellate court reviewing the denial of a Crim.R. 29 motion is required to view the evidence in a light most favorable to the prosecution. State v. Jenks, supra; State v. Martin (1983), 20 Ohio App.3d 172, 175. Having thoroughly scrutinized the record, this court finds there was sufficient evidence presented at trial which, if believed, would convince the average mind of appellant's guilt of the offense charged beyond a reasonable doubt. The state presented two eyewitnesses to the shooting, viz., Derrick Turner and Miguel Colton, both of whom gave a substantially identical version of the incident. These witnesses stated the following: 1) appellant and Mercado were members of a rival gang; 2) on the day of the shooting, appellant and Mercado were deliberately provoking the Folks members by putting graffiti on a wall in their neighborhood; 3) when spotted, appellant and Mercado got in Mercado's car and attempted to run down Owens and his friends; 4) Owens began beating up Mercado for the affronts; 5) appellant gained possession of a gun in the car; 6) appellant then reached over Mercado and shot Owens in the chest; and 7) appellant and Mercado then fled as Turner and Colton tried to aid Owens, who subsequently died from his wounds. -20- The testimony of these eyewitnesses was corroborated by the testimony of the investigating police officers, by the autopsy report and by the photographs introduced into evidence. 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 murder proven beyond a reasonable doubt. See, e.g., State v. Williams (1992), 80 Ohio App.3d 648; State v. McKenzie (Feb. 6, 1992), Cuyahoga App. No. 59850, unreported. For the foregoing reasons, the trial court did not err in denying appellants motions for acquittal. State v. Jenks, supra. Accordingly, appellant's fifth assignment of error is overruled. IV. Appellant's sixth and last assignment of error states: VI. THE CONVICTION OF DEFENDANT/APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Basing his contention upon the fact that the jury requested further instructions from the trial court regarding the burden of proof on the mitigating factor of provocation, appellant argues the weight of the evidence supported a conviction for only voluntary manslaughter. -21- 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 proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks, supra. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the 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 conviction for murder was in accord with the manifest weight of the evidence. The testimony of the state's witnesses created a compelling scenario which was corroborated by the coroner's report and the -22- photographic evidence. Appellant's testimony, on the other hand, was self-serving, essentially uncorroborated, often unbelievable, and did little to discredit the credibility of the state's witnesses. A review of the record, moreover, demonstrates that the jury's confusion on the issue of provocation resulted from the trial court's initial instruction pursuant to State v. Rhodes (1992), 63 Ohio St.3d 613 concerning the burden of proof of guilt. After the trial court clarified the instruction, the jury was able to come to a verdict. In short, there was consistent, credible evidence adduced at trial in this case which supported the jury's conclusion that with insufficient provocation to do so, appellant purposely shot and killed Owens. State v. Matthews (1992), 80 Ohio App.3d 409; State v. Johnson (1992), 79 Ohio App.3d 343; State v. Neguse (1991), 71 Ohio App.3d 596; State v. Edwards (1985), 26 Ohio App.3d 199. After weighing all the evidence, drawing all the reasonable inferences therefrom and considering the testimony and credibility of the state's witnesses and the appellant's evidence, this court concludes the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. State v. Martin, supra. -23- Accordingly, appellant's sixth assignment of error is also overruled. Appellant's conviction and sentence is therefore affirmed. -24- 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. DYKE, P.J., and KARPINSKI, 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 it will become the judgment and order of the court and time period for review will begin to run. -i- APPENDIX Appellant's supplemental assignments of error are as follows: I. THE TRIAL COURT ERRED AND FURTHER ABUSED ITS DISCRETION IN ALLOWING THE DEFENDANT/APPELLANT, PABLO TORRES (SIC), A YOUNG PUERTO RICAN YOUTH OF DISTINCT HISPANIC CULTURE AND DECENT, TO BE TRIED FOR THE SLAYING OF A RACIALLY NON- HISPANIC VICTIM, BEFORE A GRAND AND/OR PETIT ARRAY OF SELECTIVELY NON-HISPANIC JURORS, DISPROPORTIONATE FROM, AND INCONGRUOUS TO, THE DISTINCT HISPANIC POPULACE OF CUYAHOGA COUNTY. II. THE TRIAL COURT ERRED AND FURTHER ABUSED ITS DISCRETION IN IMPOSING A GREATER SENTENCE UPON THE DEFENDANT/APPELLANT, PABLO TORRES (SIC), AND ALLEGED COMPLICITOR (SIC) IN THE OFFENSE, THAN IT DID UPON CO-DEFENDANT, JOSEPH MERCADO, THE PRINCIPAL OFFENDER AND ACTUAL PERPETRETOR (SIC). III. THE TRIAL COURT ERRED AND FURTHER ABUSED ITS DISCRETION IN NOT CHARGING THE JURY WITH COMPULSORY INSTRUCTIONS AS TO THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE. IV. THE TRIAL COURT GROSSLY ABUSED ITS DISCRETION BY NOT DEFINING TO THE JURY THE STATUTORY MEANING AND CONCLUSIVENESS OF "CULPABLE MENTAL STATE", AND "REASONABLE DOUBT." V. THE TRIAL COURT ERRED IN ALLOWING THE TOWERING STACK OF INFERENCES TO LEAN BEYOND THE TRIER OF FACTS TOPPLING THE POST-SURGICAL PHOTOGRAPHS PRESENTED BY THE CORONER. VI. THE TRIAL JUDGE ERRED AND ABUSED HIS DISCRETION WHEN HE DID NOT ABDICATE HIS POSITION AS PRESIDING JUDGE, AFTER GRANTING A PRE-TRIAL MOTION TO SUPPRESS IN FAVOR OF THE PROSECUTOR. VII. THE STATE ERRED IN ESTABLISHING A PATTERN OF BEHAVIOR AMOUNTING TO PROSECUTORIAL MISCONDUCT, WHEN IT HURLED HARMFUL GESTURES TOWARD, AND VERBALIZED PREJUDICIAL STATEMENTS AGAINST THE -ii- DEFENDANT/APPELLANT, DURING TRIAL, AND UPON CLOSING ARGUMENT. VIII. THE TRIAL COURT ERRED AND FURTHER ABUSED ITS DISCRETION BY FREELY ALLOWING THE STATE TO ENGAGE IN SUCH HARMFUL PANTOMIMING AND VERBALIZED UTTERANCES OF PREJUDICIAL IMPORT, WITHOUT ADMONISHING THE STATE AGAINST PROSECUTORIAL MISCONDUCT. IX. THE TRIAL COURT ERRED IN NOT AIDING THE DEFENDANT/APPELLANT IN COMPELLING THE ATTENDANCE OF DEFENDANT'S MAIN MATERIAL AND ONLY EYE WITNESS, ONE CARLOS RODRIGUEZ JR., WHOSE TESTIMONY WAS CRUCIAL, AND WHOSE ABSENCE PROVED BEYOND (SIC) HIGHLY PREJUDICIAL TO THE DEFENSE. X. THE TRIAL COURT ERRED WHEN TRIAL JUDGE COMMUNICATED WITH THE JURY BY WALKING INTO THE JURY CHAMBER DURING DELIBERATION, FROM WHICH THE JURY REBOUNDED WITH AN ALMOST IMMEDIATE VERDICT OF GUILT. XI. THE TRIAL COURT GROSSLY ABUSED ITS DISCRETION IN NOT DECLARING A MISTRIAL AND/OR ORDERING A RETRIAL, WHEN THE STATE'S OWN MATERIAL WITNESS, ONE MIGUEL COLTON, ADMITTED ON THE STAND THAT HE KNOWINGLY LIED UNDER OATH, AND FURTHER SUBMITTED FALSE AND UNTRUE TESTIMONY AMOUNTING .