COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68302 : : IN THE MATTER OF : RASHAUNTE DAVIS : JOURNAL ENTRY : AND : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Juvenile Court Division Case No. 9401866 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD A. HEFFERNAN, ESQ. Cuyahoga County Prosecutor 668 Euclid Avenue ROBERT GLICKMAN, ESQ. Suite 534 Assistant County Prosecutor Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: A complaint was filed against appellant on February 8, 1994, alleging acts which would constitute the offenses of murder and tampering with evidence if appellant were an adult. Appellant admitted to the tampering with evidence charge at the beginning of trial. After a trial before the juvenile court bench, appellant was adjudicated delinquent for the violation of R.C. 2903.02, murder. She was remanded to the custody of Ohio Youth Services until the age of twenty-one. Appellant was fourteen years of age at the time of the incident. The victim in this case is appellant's mother, Naomi Davis. Appellant testified in her own defense that her mother came home from work on the afternoon of Thursday, January 27, 1994 and retired upstairs for several hours. When her mother came downstairs, appellant was standing in the kitchen. Appellant's mother was angry and accused appellant of being pregnant, which appellant denied. The mother threatened to blow off appellant's head if she told her another lie and went to her bedroom to retrieve her handgun, according to appellant's testimony. When her mother returned she aimed the gun in a downward position toward appellant. They struggled over the gun. Appellant testified that she never pulled the trigger but the gun discharged twice, killing her mother. Appellant admitted to dragging her mother's body down the stairs to the basement. Appellant weighed 125 pounds. Her mother - 3 - was five feet, seven inches tall and weighed 175 pounds. Appellant further admitted to wiping the blood off of the refrigerator and using a mop to clean the blood off of the kitchen floor and the basement steps. Appellant took the gun back to her mother's room, emptied the spent cartridges in the bathroom waste basket, reloaded the gun and returned it to the nightstand. She cleaned the blood off of her bare legs and went to bed. Appellant testified that the next day she watched t.v. for a while and spoke to her brother on the phone. When her brother asked to speak with their mother, appellant told him that she could not come to the phone because she had a headache. Appellant next took eight dollars from her mother's dresser, went to her male friend's house to watch t.v., then went to her baby sitter's house where she spent the weekend. Appellant admitted that she phoned her mother's work, claiming to be Naomi Davis, and reported sick for the day. When her baby sitter, Ollie Bolden, grew concerned that appellant's mother was not answering the phone, she asked her daughter, Tangee Warner, and appellant to go to the house to check on Ms. Davis. Appellant told Mrs. Bolden that she had last seen her mother on Friday and had spoken with her over the phone on Saturday, at about five in the evening. When Tangee and appellant arrived at the house, there was no answer. Appellant claimed not to have the key. Mrs. Bolden became worried enough to call the police to meet them over at the Davis house late Monday night. The police met appellant, Mrs. Bolden and her son Mattie Warner at the - 4 - house at 1:06 a.m. on February 1st. Appellant had produced a key from her jacket and when they entered they could smell a foul odor coming from the basement. At no point over the three days before the body was found did appellant tell anyone about the accidental shooting. The physical evidence found at the house corroborated appellant's version, in part. Naomi Davis was found at the bottom of the basement steps, her hands stretched over her head. The coroner's office found that she had been dead over thirty-six hours. The blood-stained mop was found in a plastic bag in the kitchen and the spent shell casings were in an upstairs bathroom waste basket. The gun was fully loaded under the mother's nightstand. The physical evidence which does not support appellant's version was produced at trial as follows. Dr. Santoscoy from the coroner's office performed the autopsy on the victim. He testified that she had been shot twice, one entrance wound above her right eyebrow, the second entrance wound on the back of the head on the right side, exiting on the left side of the back of the head. Test firing of the weapon indicated that the weapon was fired from at least thirty inches away, based upon the absence of fouling or stippling around the victim's wounds. Detective Matuszny had interviewed appellant at the scene when the body was discovered. Appellant was not under suspicion at that - 5 - point and spoke freely to the detective. She told him that her mother's ex-boyfriend, James Cunningham, was a possible suspect. On February 3rd, appellant was brought into the police station for questioning. Her mother's sister, Polly, accompanied her. Her Aunt Polly requested that she be able to wait for appellant in the lobby. Appellant was interviewed by Officers Taliano, Bornfeld and Stitt. The interview began sometime after four o'clock in the afternoon and concluded at ten minutes past eight. At about six o'clock appellant gave a statement to the officers. Detective Taliano testified that appellant had been Mirandized, that she understood her rights and was willing to speak to the officers. Taliano asked appellant if she killed her mother when appellant began crying. Appellant asked Detective Stitt, "Do you think I should have an attorney?" (R. Vol. III, p. 47). Detective Stitt responded that he could not answer that question and offered to bring appellant's aunt into the interview room. Stitt testified that the questioning stopped at that point, but just as appellant's Aunt Polly was coming to the door, appellant burst into tears and stated, "I did it, I killed my mother." (R. Vol. III, p.53). Detective Taliano put her arm around appellant. Before giving her statement in full, appellant asked that her mother's sister not be brought in the room, that she did not want her to be present. Appellant explained to Taliano that it was an accident and proceeded to give a statement, nearly identical to her in-court testimony. Detective Taliano testified that appellant told them at - 6 - first, in response to the question, where did you put the gun after the accident, that she put it "back where she got it from." (R. Vol. II, p. 14). According to Taliano's testimony, appellant then changed her response to, I "put the gun where police found it." (R. Vol II, p. 14). At trial, appellant denied having charged her story during the interview. Another conflict in testimony existed as to whether Norma Cunningham, appellant's paternal aunt and legal guardian, told Detective Stitt that her attorney had advised her that an adult or attorney be present when appellant was interviewed. Detective Stitt testified that Mrs. Cunningham had not said anything about the presence of an adult or attorney to him. In fact, prior to the interview neither Taliano nor Stitt knew that Cunningham was appellant's legal guardian. Taliano testified that Cunningham was upset upon hearing of the interview because she had not been informed of it before it took place. The trial court resolved the conflict in testimony in favor of Detective Stitt, finding that Mrs. Cunningham had not requested the presence of an attorney or adult prior to the interview. (Tr. Ct. opinion p. 13). The trial court found appellant's testimony "not only to be evasive, equivocal, and disingenuous but, in light of the physical evidence, to be incredible." (Tr. Ct. opinion p. 10). The court also found the circumstances following the death of Naomi Davis to be "inconsistent with its being accidental, but are entirely - 7 - consistent with a calculated, cold-blooded, intentional matricide." (Tr. Ct. opinion p. 10). Appellant raises six assignments of error in her appeal from the court's adjudication and sentencing. I THE DEFENDANT WAS DENIED DUE PROCESS WHEN THE TRIAL COURT PARTICIPATED IN THE INVESTIGATION OF THE ALLEGED MURDER WEAPON IN HER ABSENCE AND ASSISTED THE STATE IN ITS PROSECUTION OF THE DEFENDANT. II THE DEFENDANT WAS DENIED DUE PROCESS WHEN THE TRIAL COURT CONVERSED WITH AND RECEIVED TEST RESULTS FROM DETECTIVE BORNFELD IN HER ABSENCE. III THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE PARTIES' JOINT MOTION FOR MISTRIAL. These three assignments of error are interrelated and will be treated together. Appellant argues that the trial court did not act as an impartial fact finder when it requested tests relating to the murder weapon after the trial but before judgment was rendered. Appellant asserts that her right to confront the detective who spoke with the judge and the officer who performed the tests on the weapon was violated by the judge's conduct, to her prejudice. For the above reasons, appellant states that the trial court should have granted her motion for mistrial. We find that appellant's arguments are without merit. Following the trial, the juvenile court judge requested, through her bailiff, that the gun be brought to her courtroom. The - 8 - gun was properly entered into evidence and, as the trier of fact, the judge did have the right to examine the weapon used in the murder. According to Detective Bornfeld's affidavit, attached to the State's August 30, 1994 motion for mistrial, he delivered the gun and answered questions posed by the judge. She asked that he take the gun to be weighed and tested to determine the pounds of pressure necessary to pull the trigger. The tests were performed and the results were delivered to the judge's assistant bailiff on August 24th. On September 1st appellant was adjudicated delinquent. On the same date the court denied the State's motion for a mistrial, treating it as a Civ.R. 59 motion for a new trial because only defendants can move for new trial under Crim.R. 33. On September 6th, appellant filed a motion to join the State in its motion for a mistrial, apparently not realizing that the court had already denied the State's motion. On September 16th, the court denied appellant's motion to join the already denied motion for mistrial. On October 3rd another motion was filed by appellant, this one requesting a mistrial because of the court's actions in asking for testing on the weapon. This motion was denied by the trial court on November 2, 1994 for failure to file in a timely manner. Crim.R. 33(B) requires a motion for new trial to be filed within fourteen days. However, no journal entry was filed which explicitly denied the State's motion for mistrial on September 1st. The court indicated that the motion was denied on September 1st in - 9 - its journal entry dated September 16th, wherein the court also denied appellant's motion to join. We do not find that appellant had adequate notice of the court's action when it filed the motion to join on September 6th. If this had been a motion for mistrial, rather than a motion to join an already existing motion, the first motion filed would have been well within Crim.R. 33(B)'s requisite time frame. Assuming, therefore, that the motion for a mistrial was timely filed, we nevertheless find that it was properly denied because the court's actions did not prejudice appellant's right to a fair trial. Crim.R. 33 lists the grounds which would support a motion for a new trial: (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial; (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state; * * * The record does not indicate that the judge relied upon any information she may have received from the questions asked of Detective Bornfeld or from any test results. As a matter of fact, Bornfeld's affidavit does not indicate that the judge ever received the test results. According to the affidavit the results were handed to the assistant bailiff. In the court's findings regarding the handgun she writes specifically that: - 10 - The court determined by manual examination of the gun that a single pulling of the trigger could not result in two firings, but that in order to fire twice, the trigger not only had to be pulled each time but simultaneously there also had to be squeezing of the handle with considerable pressure. (Tr. Ct. opinion p. 10). This finding is consistent with a manual examination of the murder weapon, not with the reliance upon any test results. The weapon was properly admitted into evidence and the court was within its right to examine the evidence. A new trial may be granted for the misconduct of a jury where the substantial rights of the defendant have been materially affected. Crim.R. 33(A); State v. Hipkins (1982), 69 Ohio St.2d 80, 83, 23 O.O.3d 123, 125, 430 N.E.2d 943, 945-946. Rulings on motions for new trial are within the sound discretion of the trial court and may not be disturbed on appeal absent a clear showing that the court abused its discretion. State v. Taylor (1991), 73 Ohio App.3d 827, 833, 598 N.E.2d 818, 821- 822. State v. Haddix (1994), 93 Ohio App.3d 470, 480. We do not find proof in the record that the substantial rights of the defendant have been materially affected. Thus, the trial court did not abuse its discretion in denying the motion for a new trial. Appellant's first, second and third assignments of error are overruled. IV THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS THE INVOLUNTARY STATEMENTS MADE BY DEFENDANT. V THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS ORAL STATEMENTS MADE IN THE ABSENCE OF COUNSEL. - 11 - Both of these assignments refer to the confessional statements which appellant made to the detectives upon questioning which took place on February 3, 1994. Therefore, the assignments of error will be reviewed together. Appellant argues that her statements were involuntary and taken after she had requested the presence of an attorney. Appellant's arguments are not well taken. During the trial proceedings, the court denied appellant's motion to suppress her involuntary statements, citing the failure of appellant's counsel to argue the motion with specificity. The court allowed testimony from the detectives regarding appellant's statements to be admitted. However, the court allowed the parties to brief this issue following the trial, allowing appellant another opportunity to set forth her reasons why these statements were taken in violation of her constitutional rights. The court determined, after considering these post-trial briefs, that only the statements taken on February 3rd, during the interview which took place after appellant became a suspect in her mother's murder, were even open to question. The information she volunteered at the scene early in the morning of February 1st, was not constitutionally questionable because she was not yet under suspicion. As to the statements taken by Taliano, Stitt and Bornfeld on February 3rd, the court found that these were exculpatory, rather than incriminating, relating appellant's accidental version of the shooting. Furthermore, the court found - 12 - that appellant had intelligently and voluntarily waived her right to counsel and to remain silent. The detectives had given appellant her Miranda rights, which she acknowledged in writing. The trial court also found that even though appellant's reference to an attorney was not an unambiguous request, the detectives stopped questioning her and offered to bring appellant's aunt into the room. It was at the point when her aunt was approaching the door that appellant spontaneously offered the admission that she accidentally killed her mother. In analyzing the circumstances surrounding the interview, the trial court determined that appellant was intelligent, mature beyond her years and "street smart." The court found that the interview was not overly long, nor was appellant harassed, intimidated or induced to waive her rights. (Tr. Ct. opinion p.16). After a thorough review of the record, we find that the trial court's findings are well supported and in conformity with the law. This Court has held that a totality of the circumstances test is appropriate in reviewing the constitutional admissibility of statements taken from defendants, whether adult or juvenile. We must examine the totality of the circumstances in order to determine whether there has been a waiver of the right to remain silent and to have the assistance of counsel, even where interrogation of a juvenile is involved. * * * Though the greatest care must be taken to assure a juvenile's admissions are voluntary, parental presence is not constitutionally mandated. * * * [S]uch presence is only one factor in the totality of the circumstances surrounding the statements. [citations omitted.] - 13 - State v. Bobo (1989), 65 Ohio App.3d 685, 689-690. The Ohio Supreme Court set forth the totality of the circumstances factors to be considered as follows: In deciding whether a juvenile's confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; and the existence of physical deprivation or inducement. (State v. Edwards [1976], 49 Ohio St.2d 31, 3 O.O. 3d 18, 358 N.E. 2d 1051, approved and followed.) In re Watson (1989), 47 Ohio St.3d 86, at paragraph one of the syllabus. Under the totality of the circumstances, appellant's statements were taken after she knowingly and intelligently waived her right to counsel and her right to remain silent. Detective Taliano testified that appellant readily answered their questions. At the point in the interview where appellant admitted that she had shot her mother, albeit, unintentionally, appellant was speaking spontaneously and of her own accord. Appellant was Mirandized fully, and for the second time, before any further questions were asked, after her admission. Even though a parent or guardian was not present during the interview, we agree with the trial court that appellant's intelligence and maturity indicated that she was capable of voluntarily giving statements to the police. The interview was not lengthy and nothing in the record suggests that appellant was harassed or suffered any physical deprivations to coerce a statement from her. Under the totality of the circumstances, - 14 - appellant voluntarily gave her version of the events surrounding her mother's death to the investigating officers. As to appellant's argument that she had requested the assistance of an attorney, which was not provided, we concur with the trial court's decision. Appellant's inquiry of Detective Stitt was, "Do you think I need an attorney?" according to Stitt's testimony. The Ohio Supreme Court recently reiterated the law of this area: As this court noted in State v. Benner (1988), 40 Ohio St.3d 301, 310, 533 N.E.2d 701, 711-712, in the context of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, a person must affirmatively articulate a request for counsel in order for the right to attach during interrogation. See United States v. Pearson (C.A.11, 1984), 746 F.2d 787, 793. State v. Hill (1992), 64 Ohio St.3d 313, 320. Appellant's inquiry was not an affirmative articulation of a request for counsel, therefore the right did not attach. Nevertheless, the detectives did cease questioning. It was at appellant's spontaneous admission that questioning resumed, and then only after another recitation of her constitutional Miranda rights. We do not find that appellant's statements given after her reference to an attorney were inadmissible. The trial court properly denied the motion to suppress her statements. Appellant's fourth and fifth assignments of error are overruled. - 15 - VI THE TRIAL COURT'S ADJUDICATION OF DELINQUENCY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the State failed to prove beyond a reasonable doubt that she killed her mother intentionally. Appellant has claimed that the shooting was accidental. The State's proof could not rebut appellant's claim, according to her argument. This assertion is without merit. The State met its burden of proof to rebut appellant's assertion that the shooting was accidental. Given the physical evidence that the victim was shot twice, once through the forehead, once through the back of her head, from a distance greater than thirty inches, we find the State proved the intentional nature of the shooting. It is physically impossible for the incident to have taken place as appellant described. We also consider the evidence of appellant's behavior following the shooting to be wholly inconsistent with an accident. Even if we assumed that appellant was suffering from shock immediately following the death of her mother, we can not assign that excuse to such calculated behavior as calling her mother's place of work and lying to Mrs. Bolden and the police as to the last times she had seen and heard from her mother. We find this evidence to additionally support the element of intention to kill, with the physical evidence already discussed. In determining whether the verdict is against the manifest weight of the evidence the court, reviewing the entire record, weighs the evidence and all reasonable - 16 - 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. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. After a review of the evidence, we can not find that the court lost its way and created such a manifest miscarriage of justice that the conviction should be reversed. Appellant's sixth assignment of error is overruled. The court's adjudication of delinquency and subsequent sentencing for the act which would constitute the offense of murder, if appellant had been an adult, is affirmed. - 17 - 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, Juvenile Division, 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., CONCURS. HARPER, J., CONCURS IN JUDGMENT ONLY 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, .