COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68105 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CONRELL BOLDEN : : [UPON MOTION FOR : RECONSIDERATION] Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 21, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-295,076 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor THOMAS E. CONWAY, Assistant FRANCINE GOLDBERG, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 TIMOTHY E. McMONAGLE, J.: We grant rehearing in this case on application of the defendant-appellant in order to clarify the basis for our previous opinion on the issue of whether the trial court improperly permitted the state to exercise a peremptory challenge. See Journal Entry and Opinion dated January 18, 1996. I. Defendant-appellant Conrell Bolden appeals from his convic- tion for aggravated murder in violation of R.C. 2903.01. The following evidence was adduced at trial: On June 25, 1992, at approximately 7:30 p.m., City of Cleve- land Police Officer Gerald Crayton and his partner, Rodney McClendon, were dispatched to the rear of 904 East 141st Street in response to a call reporting a dead body at that location. The victim was identified as Michael Baylers, a black male in his twenties who lived in the neighborhood. Dr. Heather Nielsen Raaf, a forensic pathologist employed with the Cuyahoga County Coroner's Office as a deputy coroner, performed an autopsy of Michael Baylers. She determined the cause of his death to be blood loss as a result of gunshot wounds to the chest, arm and abdomen. - 3 - Joseph Clevenger, who lived in the same neighborhood as Baylers and appellant, testified that on June 25, 1992, he was standing on East 141st street talking with Baylers when the appellant asked to speak to him alone. Clevenger walked to where the appellant was standing and observed appellant holding a blue and white bag. The appellant asked Clevenger if he wanted to help kill Baylers for "the Arab," whom Clevenger understood to be Jabber Muttlaq, a.k.a. Scarface, the owner of a neighborhood store. Clevenger, who did not take the appellant seriously, asked appellant, "Why kill a black man for an Arab?" to which appellant responded, "F--- that." Clevenger then walked back over to where Baylers was still standing, not saying anything to him about what the appellant had said. According to Clevenger, the appellant and his cousin, Eric Bolden, then came over to where he and Baylers were standing and joined their conversation. After some time, Clevenger said he and Eric Bolden left the appellant and Baylers together and walked to the store owned by Muttlaq to get beer. On their way back, Clevenger said he could see the appellant and Baylers arguing. He said he then saw the appellant pull a gun out of the blue and white bag he was carrying and shoot Baylers in the arm. Baylers yelled out that he had been shot and then attempted to run from the appellant. The appellant then fired two more shots into Baylers's back. The appellant and Eric Bolden then took off running in different directions. - 4 - One week after the shooting, Clevenger went to the police and told them what he had witnessed. Eric Bolden, the appellant's cousin, also testified for the prosecution. Bolden testified that on June 25, 1992, he was living with appellant and appellant's family. On that date, he said he heard gunshots from the area where Baylers's body was later discovered. He said that after he heard the shots, he saw his cousin, the appellant, run from the area, stuffing a gun into his pants. He said he saw the appellant run in the direction of Muttlaq's store. Bolden said he went straight home after the shooting. Bolden said that later, when the appellant came home, he told Bolden that he killed Baylers because he needed money. He also told Bolden that he gave the gun he used to kill Baylers to Muttlaq. Bolden also testified that Muttlaq held a grudge against Baylers because Baylers, Baylers's girlfriend, Bolden himself, and several other people had broken into Muttlaq's store a few weeks earlier. Bolden said he and the others were caught when the appellant told the police that Bolden had brought stolen merchan- dise home. Bolden further testified that a few days after he and Baylers broke into Muttlaq's store, Muttlaq attacked them with a baseball bat. - 5 - Robert Slaughter also testified for the prosecution. Over objection, Slaughter testified that on the morning of June 25, 1992, the day Baylers was killed, he was in Muttlaq's store. He said that Muttlaq told him he was upset at Baylers for breaking into his store a few weeks earlier. He said Muttlaq then offered him $500 to kill Baylers and Michelle Wright, Baylers's girlfriend. Slaughter told Muttlaq he could not kill these people. Slaughter said he then left the store and went to see Michelle Wright and Baylers's brother and told them what Muttlaq had said. About one hour after Baylers was shot, Slaughter said he spoke with the appellant. Slaughter said he asked appellant why he was wearing a long trench coat when it was ninety degrees outside. Slaughter said the appellant told him he had to pick something up from Muttlaq and that he had to make some money. Slaughter said the appellant mentioned the sum of $500.00. Myron Davis, another prosecution witness, testified over objection that approximately one week before Baylers was shot, Muttlaq offered him $500 to kill both Baylers and Michelle Wright, or $250 apiece. Carlos Coates, a witness for the defense, testified that he and Joseph Clevenger were in the county jail together and that Clevenger told him that he had killed Michael Baylers and, with the help of Eric Bolden, had pinned the murder on the appellant. - 6 - II. The appellant raises the following five assignments of error for this court's review: I. THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO EXERCISE A PEREMPTORY CHALLENGE, IN VIOLATION OF CRIM.R. 24(D) AFTER ALL PARTIES WAIVED THE REMAINING CHALLENGES AND EXPRESSED SATISFACTION WITH THE JURY. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT IMPROPERLY DECLARED A CRITICAL STATE'S WITNESS UNAVAILABLE PURSUANT TO EVID.R. 804 AND VIOLATED THE APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ART. I, SEC. 10 OF THE OHIO CONSTITUTION. III. THE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE ASSISTANT PUBLIC DEFENDER HAD A CONFLICT OF INTER- EST BETWEEN THE APPELLANT AND THE ONLY DEFENSE WITNESS; THE CONFLICT OF INTEREST ALLOWED THE STATE TO IMPROPERLY IMPEACH THE APPELLANT'S ONLY WITNESS AND DEPRIVED THE APPELLANT OF A FAIR TRIAL AND DUE PROCESS. IV. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF AGGRAVATED MURDER AS THE ELEMENT OF PRIOR CALCULATION AND DESIGN WAS NOT PROVEN BEYOND A REASONABLE DOUBT. THE CONVICTION VIOLATES THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ART. I, SECTIONS 9 AND 16 OF THE OHIO CONSTITUTION. V. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT DENIED THE APPELLANT A FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE U.S. AND OHIO CONSTITUTIONS. In his first assignment of error, the appellant argues that the trial court violated his due process right to a fair trial when it improperly permitted the state to exercise a peremptory - 7 - challenge, in violation of Crim.R. 24(D), after both parties ex- pressed satisfaction with the jury but before the jury was sworn. The record reveals that the trial court permitted the state, over objection, to exercise a previously waived peremptory chal- lenge to remove a juror who waited until after both sides expressed satisfaction with the jury to express her reservations about serving as a juror because the defendant reminded her of her son. Both sides agreed that the juror could not be removed for cause. In an effort to be fair, the trial court also permitted the defense to exercise their previously waived peremptory challenge to remove a later seated juror. After the final panel was selected, both sides again expressed satisfaction with the jury. Neither side has called to our attention any case addressing the specific issue raised under this assignment of error nor has our own research revealed any. In analyzing this issue, we are mindful of the fact that the right to peremptorarily challenge jurors is an absolute right of both parties which cannot be denied. In this case, the juror at issue did not come forward with her concerns about serving on this case until after the prosecution had expressed satisfaction with the jury. Given the nature of her concerns, and had she expressed these concerns earlier, the prosecution could have exercised its remaining peremptory challenge and removed her from the panel. Since she did not come forward earlier and the prosecution accepted the jury after having exercised only two of its three peremptory challenges, we believe - 8 - it was within the sound discretion of the trial court to allow the prosecution to use its third peremptory challenge to remove the juror before the jury was sworn, especially since the defense was then also permitted to exercise its own previously-waived peremptory challenge. Given these specific circumstances, any other result, we believe, would establish a rule at odds with the philosophy of Crim.R. 24 and the peremptory challenge system as we know it. The appellant's first assignment of error is overruled. In his second assignment of error, the appellant argues that the trial court improperly allowed certain out-of-court statements attributed to Jabber Muttlaq to be admitted into evidence through Robert Slaughter and Myron Davis pursuant to Evid.R. 804(B)(3). Resultantly, the appellant claims the jury verdict was based upon erroneously admitted testimony and thus constitutes prejudicial error. Specifically, the appellant argues that the witnesses' tes- timony does not qualify under any exception to the hearsay rule under Evid.R. 804 because the prosecutor's unsworn statement to the court that he was told by the Federal Bureau of Investigation that Muttlaq, the declarant, was in Lebanon was insufficient to establish unavailability. The prosecution maintains that it did make a sufficient showing of Muttlaq's unavailability, and even if it did not, no error occurred because the subject statements were - 9 - properly admissible as statements by a co-conspirator under Evid.R. 801(D)(2)(e). First, we find that the prosecution did not adequately pre- serve for appellate review the issue of whether the subject statements were properly admissible as a statement by a co- conspirator under Evid.R. 801(D)(2)(e). Our review of the record of proceedings fails to reveal that the prosecution raised this ar- gument before the trial court. An issue is waived for purposes of consideration on appeal when it is neither briefed nor argued in the trial court. State v. Williams (1977), 51 Ohio St.2d 112, 117; see, also, Thompson v. Preferred Risk Mut. Ins. Co. (1987), 32 Ohio St.3d 340. We turn now to the issue of whether the trial court properly admitted the subject statements pursuant to Evid.R. 804. In State v. Keairns (1984), 9 Ohio St.3d 228, 232, the Ohio Supreme Court determined that a showing of unavailability under Evid.R. 804 must be based on the sworn testimony of witnesses. In holding that the state failed to meet its burden of proving unavailability of the declarant in that case, the court stated as follows: A review of the record shows that the prose- cution offered no sworn testimony of its efforts to find the witness. The sole support offered consisted of representations of the prosecutor that subpoenas had been issued, that Huff was not present for the second trial, and that he had "specifically asked the Sheriff to make a continued search for her and they ha[d] done that." Appellee never conceded that the prosecution had made any efforts, reasonable or otherwise. A showing of unavailability under Evid.R. 804 must be based on testimony of - 10 - witnesses rather than hearsay not under oath unless unavailability is conceded by the party against whom the statement is being offered. The prosecutor's representations clearly do not meet this requirement. Furthermore, the mere statement that a "continued search" had been made lacks sufficient particularity to enable the court to determine what steps had been taken and whether they were reasonable. See Valenzuela v. Griffin (C.A.10, 1981), 654 F.2d 707, 710. ("A simple statement by the prosecutor that the state had issued a subpoena and bench warrant and 'had been looking for her' is not enough.") The issuance of a subpoena alone does not constitute a sufficient effort when other reasonable methods are also available. *** (Emphasis added.) Similarly in this case, the only support offered to establish unavailability was the unsworn statements of the prosecutor that: The State of Ohio has been made aware of the fact that, through the FBI, one Gerald Perzonon, that in fact Jabber Muttlaq is out of the country. I spoke with Gerald Perzonon, I believe a couple of weeks ago, in which he indicated that Jabber Muttlaq's brother was killed in an armed robbery, somewhere in the City of Cleveland. *** And Jabber Muttlaq flew back to, I guess the country is Lebanon, where he's to bury his brother. Obviously he's not available. Even if he was back here your Honor, which he isn't, because I asked the FBI agent to inform me if he ever comes back in, for obvious reasons, and its not been indicated to me that he's returned to the country yet *** In light of Keairns, this court finds that these unsworn representations by the prosecutor were wholly insufficient to establish the unavailability of Muttlaq. Therefore, the trial court erred in allowing Slaughter and Davis to testify that Muttlaq offered them $500 to kill Baylers and Michelle Wright. - 11 - We do not, however, agree with appellant that the erroneous admission of this testimony constituted prejudicial error. Crim.R. 52(A). Appellant makes the argument that the hearsay statements of Slaughter and Davis were the only evidence of prior calculation and design offered by the prosecution and that absent such evidence, there was no basis for the jury to conclude that the appellant caused the death of Baylers with prior calculation and design. "Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." State v. Cotten (1978), 56 Ohio St.2d 8, paragraph three of the syllabus. In State v. DeMarco (1987), 31 Ohio St.3d 191, 195, the Ohio Supreme Court held that an error in the admission of evidence is harmless if there is no reasonable possibility that the evidence may have contributed to the accused's conviction and that, in such cases, there must be overwhelming evidence of the accused's guilt or some other indicia that the error did not contribute to the conviction. In this case, there was sufficient evidence, pursuant to DeMarco, other than the testimony of Slaughter and Davis, which proved that the appellant caused the death of Baylers with prior calculation and design. Clevenger testified that well before the - 12 - shooting, the appellant asked him if he wanted to help kill Baylers for "the Arab," whom Clevenger understood to be Jabber Muttlaq. Clevenger also testified that there was a lapse in time between the first shot, which braised Baylers' elbow, and the second and third shots which proved fatal. In addition, Eric Bolden testified that the appellant told him he had killed Baylers because he needed money. As there is independent evidence of prior calculation and design, this court finds that the admission of the hearsay statements was not prejudicial error affecting the defendant's rights. Accordingly, the appellant's second assignment of error is overruled. In his third assignment of error, the appellant asserts that he was denied effective assistance of counsel because a conflict of interest existed between one of his attorneys, Mary Cay Tylee, and defense witness Carlos Coates, whom Ms. Tylee had represented in an unrelated legal matter. The Sixth Amendment guarantee of effective assistance of counsel includes the right to counsel's undivided loyalties. Glasser v. United States (1942), 315 U.S. 60, 70. To establish a Sixth Amendment violation, a defendant raising a post-trial objec- tion "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan (1990), 446 U.S. 335, 348. As stated, mere "possibility of con- flict is insufficient to impugn a criminal conviction." Id. at - 13 - 350. A court will presume prejudice only if the defendant "demon- strates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Strickland v. Washington (1984), 466 U.S. 668, 692, quoting Cuyler, supra, at 350. The appellant here argues that Tylee's representation of Coates created a conflict of interest in her representation of him because it enabled the prosecutor to intimate to the jury that Coates fabricated his testimony to help the appellant at the request of Tylee. We do not agree. The prosecution never sug- gested or insinuated that Tylee had anything to do with Coates testifying on the behalf of the appellant in this case. Moreover, Coates testified that he never spoke with Tylee about the appel- lant's case or about what Clevenger told him. Instead, Coates said he contacted another public defender on the appellant's behalf and told her what Clevenger told him regarding the appellant's case. The appellant's third assignment of error is overruled. In his fourth assignment of error, the appellant argues that it was error for the trial court to deny his Crim.R. 29 motion for acquittal. Specifically, the appellant argues that absent the hearsay testimony of Slaughter and Davis that Muttlaq was offering $500 for the murders of Baylers and Michelle Wright, there was no evidence of prior calculation and design presented by the prosecu- tion. - 14 - In order to sustain the appellant's conviction for aggravated murder on appeal, there must be sufficient evidence which, if believed, would convince the average mind that the appellant, with prior calculation and design, caused the death of Michael Baylers. R.C. 2903.01. As stated by the Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted 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. (Jackson v. Vir-ginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) To begin, proof of prior calculation and design is an essen- tial element of the offense of aggravated murder. R.C. 2903.01. The Ohio Supreme Court has repeatedly emphasized the test for prior calculation and design as enunciated in State v. Cotten, supra, paragraph three of the syllabus, as follows: Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circum- stances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. (Emphasis added.) See, also, State v. Moreland (1990), 50 Ohio St.3d 58; State v. Robbins (1979), 58 Ohio St.2d 74. - 15 - In State v. Jenkins (1976), 48 Ohio App.2d 99, the following guidelines were set forth: The trier of fact must look to the context in which the killing occurred to determine whe- ther there was prior calculation and design. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and de- sign include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim was known to him[;] whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide. When the evidence adduced at trial establishes that the victim was unknown to the accused prior to the crime, and that there was little or no preparation, but rather that the crime was an instantaneous eruption of events, then *** the evidence adduced at trial is legally insufficient ***. As discussed under the appellant's second assignment of error, the prosecution did present evidence, other than the hearsay statements of Slaughter and Davis, from which a rational trier of fact could have found the existence of prior calculation and design beyond a reasonable doubt. Clevenger testified that well before the shooting, the appellant asked him if he wanted to help kill Baylers for "the Arab," whom Clevenger understood to be Jabber Muttlaq. Clevenger also testified that there was a lapse in time between the first shot, which braised Baylers's elbow, and the second and third shots which proved fatal. In addition, Eric - 16 - Bolden testified that the appellant told him he had killed Baylers because he needed money. This evidence, if believed, was sufficient evidence from which a rational trier of fact could have found the element of prior calculation and design. The appellant's fourth assignment of error is overruled. Finally, in his fifth assignment of error, the appellant asserts that he was denied his constitutional right to a fair trial due to prosecutorial misconduct during the state's response to his closing argument. The appellant contends that the prosecutor improperly conveyed his personal opinion of the credibility of defense witness Carlos Coates by stating that appellant put Coates up to testifying and that Coates was a "total scum ball loser." The trial court has broad discretion in controlling the scope of closing arguments. State v. Davis (1991), 62 Ohio St.3d 326; State v. Maurer (1984), 15 Ohio St.3d 239. We review the trial court's decisions regarding the propriety of the prosecutor's remarks under an abuse of discretion standard. Id. The issue for us to consider is whether the remarks made prejudicially affected substantial rights of the accused. State v. Loza (1994), 71 Ohio St.3d 61; State v. Lott (1990), 51 Ohio St.3d 160. The role of an attorney in closing argument is to assist the jury in analyzing, evaluating and applying the evidence. State v. Brand (1978), 56 Ohio App.2d 271. While parties are granted considerable latitude in closing argument, arguments transcending these boundaries are improper. Therefore, a prosecutor may not - 17 - express an opinion on the credibility of a witness unless the opinion is based on the evidence in the case. State v. Smith (1984), 14 Ohio St.3d 13, 14, citing State v. Thayer (1931), 124 Ohio St. 1. Appellant argues that the prosecutor's statement that Coates was urged by appellant to testify on his behalf was improper. Our review of the record demonstrates that this comment was made in direct response to comments made by defense counsel in his closing argument. In his closing, defense counsel attempted to bolster the testimony of Coates by explaining to the jury that "pod mates" talk to each other about their cases "day in and day out *** [because] that's all they have to do in our system." The prosecutor's comment to the contrary was fair response to these statements of defense counsel. The prosecutor's intemperate reference to Coates as a "total scum ball loser" was, however, improper. Comments of this type are inappropriate, unprofessional and go beyond the rhetorical license afforded to attorneys. This epithet conveys no proper information to the jury and is well outside the scope of permissible comment on the evidence. Nevertheless, we cannot say that the prosecutor's derogatory characterization of Coates, when viewed in the light of the prosecutor's entire closing argument, the trial court's instructions to the jury and the overwhelming evidence of guilt presented by the prosecution, prejudiced the appellant. The appellant's fifth assignment of error is overruled. - 18 - 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 Cuyahoga County 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. DAVID T. MATIA, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .