COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67870 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES BROOKS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 31, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-299774 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender EDWARD O. PATTON, ESQ. ARTHUR A. ELKINS, ESQ. Assistant County Prosecutor Assistant County Public Defender The Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Appellant was indicted on one count of aggravated murder with a firearm specification in connection with the July 24, 1993 death of Anthony Thomas. On August 4, 1994 a jury convicted appellant of the charged offense and the court sentenced him to life. On October 8th appellant was re-sentenced to twenty-five years to life incarceration plus three years consecutive on the firearm specification. The testimony of the witnesses was generally consistent as to the series of events which took place on July 24, 1993. On that day appellant had worked on an odd job with Walter Briggs, cleaning the basement of an apartment house where Anthony Thomas lived. Thomas proposed pawning his television and an air conditioning unit to Briggs while the men were working in the basement. Briggs agreed to give Thomas twenty-five dollars for the appliances and the men went upstairs to Thomas's apartment to retrieve them. The three men went to Briggs's apartment which was located directly across the street from the two-family style house in which appellant lived with his wife. Appellant's brother-in-law and his wife lived in the upper half of the two-family home. The three men commenced drinking beer at the apartment. Briggs had given Thomas twenty dollars for the television and air conditioner but had to go to the store for change before giving him the other five dollars. Thomas went his own way while appellant and Briggs went to the store together. - 3 - The men met at Briggs's apartment a little while later. Frances McClain joined them and Phillis Johnson also came over to use Briggs's oven to heat a pizza. At this point appellant asked Thomas for ten dollars which Thomas owed him from a job they had done together the previous week. Thomas told appellant that he no longer had the ten dollars, even though Briggs had just given him twenty-five dollars. According to the testimony of Johnson, Briggs and McClain the two men began a heated argument over this money. Appellant testified that Thomas was angered because appellant had suggested that Thomas would have had the ten dollars if he had not spent the money on crack. Briggs broke up the argument by forcing Thomas out of the apartment and locking the door to keep appellant inside. Witnesses testified that appellant had retrieved a gun and was waving it at Thomas. Thomas continued to pace angrily back and forth in front of the apartment, yelling threats at appellant. Appellant testified that he became concerned when he saw Thomas go over to his house which was visible from Briggs's front window. When Briggs refused to let appellant out of the apartment, appellant asked Briggs for a beer. Ostensibly retrieving a beer from the back of the apartment, appellant went out the back door. Vera Brooks, appellant's wife, testified that Thomas came over to the house and told her that she had better bring appellant home before Thomas did something he would regret. Thomas seemed angry and had his right hand in his pocket. Concerned about appellant, - 4 - Vera went to Briggs's apartment. Johnson told her that appellant had already left the apartment out the back. Vera left by the front door and proceeded down the street two blocks to a garage where appellant sometimes could be found. Shortly after turning around to retrace her steps, Vera heard what she believed to be firecrackers. She saw a body laying on the sidewalk where people had begun to gather and, being a nurse, she went over to help. After appellant left Briggs's apartment, he went across the street to his house to check on his wife. Appellant found the front door to be unlocked, which was unusual, and Vera gone. Appellant testified that he did not see his brother-in-law, Robert Hiram, when he went to the house. After leaving the house to search for Vera, appellant heard Thomas yelling at him from the sidewalk at the corner. According to appellant Thomas was threatening to kill him and had his hand in his pocket, so he shot Thomas and fled the scene in his wife's car. Appellant's brother-in-law testified that he saw appellant just prior to the shooting. According to Robert Hiram's testimony, appellant told him that he was "going to shoot that nigger over ten dollars." Hiram saw a gun in appellant's pocket. This testimony was corroborated by the police report drafted later that evening, quoting from an interview with Hiram. Apparently an audio tape of a call to 9-1-1 from the pay telephone next to where Thomas was found shot was played to the jury. This tape allegedly was evidence that Thomas feared for his - 5 - life just before he was shot. The tape allegedly described a man with a gun looking for the caller who identified himself as Thomas. We can not take this evidence into consideration due to the fact that the contents of the tape were not transcribed into the record and the tape itself is not in the evidence envelope provided in the record. Appellant later returned to the scene to turn himself in after the police had taken Vera downtown for questioning. Appellant was seen by several doctors, both before and after the shooting, regarding his deteriorating mental condition. Apparently appellant had fallen three stories from a scaffolding several years before. The report from Dr. David Fero, II, indicated that appellant suffered from "substantial difficulty in everyday memory... attention deficits... perceptual problems." (TR. 241). Furthermore, appellant suffers "from a dementia related to his, presumably his head injury, and his use of some alcohol in the past, and perhaps aging." (TR. 249). Appellant was approximately sixty-three years old at the time of the shooting. Appellant filed a timely notice of appeal from his conviction and sentence, asserting three assignments of error. I THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF AGGRAVATED MURDER IN VIOLATION OF R.C. 2903.01. Appellant argues that the evidence failed to demonstrate that he had sufficient time and opportunity to plan to kill Thomas. The - 6 - evidence showed that the men were intoxicated, that appellant was in a state of heightened agitation about the safety of his wife and that appellant suffered from chronic dementia with paranoid delusions. Allegedly this chaotic situation prevented appellant from preparing a mental plan to shoot Thomas. Appellant's argument is not well taken. The standard of review used by this Court in determining whether evidence was sufficient to support the conviction was stated by the Ohio Supreme Court as follows: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction 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. We find that evidence existed upon which a rational trier of fact could rely to support the element of prior calculation and design beyond a reasonable doubt. This Court has recently held that: "* * * `Prior calculation and design' require some kind of studied analysis with its object being to cause the death of another. Momentary premeditation is no longer sufficient." State v. Jenkins (1976), 48 Ohio App.2d 99, 2 O.O.3d 73, 355 N.E.2d 825, paragraph two of the syllabus. Further, when the evidence reveals the presence of sufficient time and opportunity for the planning of an act of homicide and the surrounding circumstances show a scheme designed to implement the calculated decision to kill, a finding of prior calculation and design by a - 7 - trier of fact is justified. State v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755. State v. Wages (1993), 87 Ohio App.3d 780, 790. After reviewing the evidence in a light most favorable to the prosecution, we find that Hiram's testimony that appellant told him just before the shooting that he was "going to kill a nigger over ten dollars" constituted evidence of prior calculation and design. We further find that testimony from Hiram, Briggs and McClain indicates that appellant was upset about the money. Each of these witnesses attempted to calm appellant, telling him that ten dollars was not a sufficient reason to get so upset. In fact, Briggs refused to let appellant out of the apartment in the agitated state he was in. Appellant attempts to argue that his state of agitation was not over the money but over the whereabouts of his wife and that he could not have formed a plan to kill Thomas, given the chaotic circumstances and his intoxication and mental problems. We do not find that appellant's intoxication nor his mental disabilities created an inability to form a plan to kill Thomas. This defense was raised in State v. Moreland (1990), 50 Ohio St.3d 58. The defendant claimed that his high level of intoxication prevented him from preparing a plan to kill. The Ohio Supreme Court held that: [E]vidence of appellant's intoxication conflicted with evidence brought out by appellee... appellant did not appear to be drunk or have difficulty walking or talking... Finally, the testimony of Dayron Talbott regarding appellant's act of reloading the rifle after - 8 - Glenna Green's murder shows some degree of functional ability. State v. Moreland (1990), 50 Ohio St.3d at 67. Similarly, evidence presented by the State indicated that appellant had the ability to function in that he was able to deceive Briggs by leaving the apartment by the back door, was able to locate Thomas, shoot him and leave the scene in a car, hiding the gun under the back seat. We do not find that appellant was so dysfunctional as to be unable to kill Thomas with prior calculation and design. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant asserts that the only evidence supporting the element of the aggravated murder offense requiring prior calculation and design was the testimony of Robert Hiram. Appellant claims that Hiram's testimony was conflicting and unreliable, therefore the conviction was against the manifest weight of the evidence. Appellant's argument is without merit. The standard of review used to determine the issue of manifest weight of the evidence is stated as follows: 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. The discretionary power to grant a new - 9 - 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, paragraph three of the syllabus. Although Hiram was clearly not the best witness for the State, in that some of his testimony was confused, the crucial testimony was corroborated by other evidence. The police report made out later that evening includes the quote from Hiram that appellant had come to him just prior to the shooting, with a gun exposed in his pocket, and threatened to "kill a nigger over ten dollars." The other witnesses, including Briggs and McClain, support Hiram's assertion that appellant was indeed upset about the money. In spite of Hiram's difficulties on the stand, we find that this part of his testimony was sufficiently corroborated as to be reliable. After reviewing the entire record we can not find that the jury clearly lost its way nor created a manifest miscarriage of justice in accepting Hiram's testimony as true. Appellant is not entitled to a new trial on this basis. Appellant's second assignment of error is overruled. III APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION. Appellant argues that his trial counsels' performance was defective in four different respects, substantially violating his duty and causing unfair prejudice to appellant. Appellant asserts - 10 - that trial counsel failed to object to the improperly authenticated tape recording of Thomas's 9-1-1 call; counsel failed to renew appellant's Crim.R. 29 motion at the close of the State's case; failed to request rulings on appellant's outstanding motions to suppress; and, failed to object to the court's instruction to the jury on the burden of proof associated with the self-defense theory asserted by appellant. We are not persuaded that trial counsel's performance denied appellant his constitutional right to effective assistance of counsel. 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 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. [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. State v. Bradley (1989), 42 Ohio St.3d 136, 143. We do not find that appellant was prejudiced by counsel's failure to object to the admission of the tape made of the call to 9-1-1. In our review of the evidence, because of the tape's absence from the record, we have not considered it and have - 11 - nevertheless found the conviction to be supported by the remainder of the testimony and evidence. While it is true that trial counsel's Crim.R. 29 motion for acquittal did not occur just at the time of the State's final presentation of evidence, we find that this case presented unique circumstances. Robert Hiram's testimony was discontinued due to his ill health and the defense went forward with their case, anticipating Hiram to return in a few days to complete his testimony for the State. After Hiram concluded his testimony, the court was again faced with some confusion due to Hiram's health. The judge was calling for oxygen and the proceedings did not continue in such an orderly fashion to permit the Crim.R. 29 motion to be made at that time. The defense continued with its presentation of evidence. At the conclusion, the motion was made and denied. The assistant prosecutor commented on record, "That's the one after the end of the state's case. Now, you got another one." (TR. 442). This comment tacitly implied that the presentation of evidence for the State had not been orderly and was an acceptance of the motion as if made at the time the State rested, which it did not explicitly do at any point. Additionally, a Crim.R. 29 motion was filed with the court the day after appellant's sentencing, two days after the jury's finding of guilty. Given the odd circumstances of the trial proceedings, we find that the trial counsel did not err in making the motion for acquittal, nor in renewing it. - 12 - Further, we do not find that appellant was prejudiced by counsel's failure to renew the motions to suppress made by appellant's original attorneys. These motions were filed after the notice of appearance was filed by appellant's trial counsel. The motions also failed to allege any factual basis to support the suppression of any evidence. We do not see how such motions would have been supported given the facts of the case. This Court can not find prejudice in the trial counsel's failure to reassert such defective motions. Finally, we do not find prejudice in counsel's failure to object to the court's instruction to the jury concerning appellant's burden of proof as to the theory of self-defense. It is a fact that the trial court gave a thorough instruction on the nature of self-defense but neglected to state that the preponderance of the evidence burden of proof was the appropriate standard to apply to appellant's evidence of self-defense. This may have implied to the jury that appellant's burden was the same as the State's, beyond a reasonable doubt. We find that the evidence was such that a rational trier of fact could not have found the elements of self-defense, even applying the lower burden of proof. To prove self-defense, appellant would have had to show that he had attempted to avoid the fight or leave the scene of the trouble. Further, appellant would have had to present evidence to support the element that appellant had reasonable grounds or an honest belief that his only means of - 13 - escape from the danger Thomas posed was by injuring or killing Thomas. We do not find that appellant presented evidence as to either of those elements of self-defense, thereby rendering the defense unavailable to him. Appellant failed to show that the ineffectiveness of his trial counsel caused him prejudice and denied appellant his right to a fair trial. Appellant's third assignment of error is overruled. Appellant's conviction and sentencing are affirmed. - 14 - 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. BLACKMON, P.J., AND HARPER, 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, .