COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68701 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION ALFONZSO JOHNSON JR. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-317149 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender ROBERT DUBYAK, ESQ. DANIEL SCULLY, ESQ. A. STEVEN DEVER, ESQ. Assistant Public Defender Assistant County Prosecutors 100 Lakeside Place The Justice Center 1200 West Third Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 ALFONZSO JOHNSON, PRO SE Serial No. 302-388 Trumbull Corr. Inst. P.O. Box 901 Leavittsburg, OH 44430-0901 - 2 - KARPINSKI, J.: Defendant-appellant, Alfonzso Johnson Jr., appeals from the judgment of the trial court finding defendant guilty on one count of murder with a firearm specification for the murder of Melissa Pettis. On appeal, defendant raises four assignments of error, one in his appellate brief and three additional assignments in his pro se supplemental brief. For the reasons that follow, we affirm the judgment of the court below. On August 5, 1994, Melissa Pettis, defendant's girlfriend, died of a gunshot wound to the head. Defendant was located in Ironton, Ohio, and brought back to Cleveland. He was charged with aggravated murder in count one and aggravated burglary in count two. A suppression hearing was held in which the following evidence was presented. Detective Diane Parkinson of the Cleveland Police Department testified that she and Detective Matuszny were sent to Dublin, Ohio, to pick up the defendant. The two officers met the Dublin authorities and obtained custody of defendant around 9:30 p.m. Detective Parkinson testified that at this point she read defendant his Miranda rights. Because defendant was hungry, the officer drove to McDonald's to purchase dinner for the defendant. The police then drove to Cleveland. During the trip, defendant was handcuffed, but his legs were free. Defendant slept for most of the three-hour trip. Upon arriving in Cleveland, the officers took defendant to the - 3 - Homicide Unit of the Cleveland Police Department at approximately 12:22 a.m. The police described the defendant as alert and attentive. Parkinson further testified that while waiting in the Homicide Unit, defendant was again advised of his Miranda rights, at which point he told them he "wanted to tell us what happened." (Tr.48.) At this time the police were aware that the defendant had prior arrests. Defendant then signed a document which contained his name, the charge of aggravated murder and aggravated burglary, and his Miranda rights. He also signed the blank indicating that he understood his rights and that he wanted to make a statement. The police were aware that defendant could read because he read the question lines orally. He then gave the statement which was typed on the statement form. In this state- ment, defendant explained that Pettis was killed when the gun she was playing with went off. His statement described Pettis holding the gun, not defendant. The form was completed by 12:55 a.m. Parkinson stated finally that defendant never requested an attorney and that she felt defendant had voluntarily waived his rights. Defendant testified that he surrendered himself to the authorities in Ironton around 2:00 p.m. Before surrendering, defendant called his relatives. He was held in a group home for juveniles and taken to see the judge. Defendant testified that the Lawrence County judge told defendant what the charges were against him. (Tr. 85.) He testified that he was not given an opportunity to call his parents once he arrived in Cleveland. - 4 - Contradicting Parkinson's testimony, he stated he signed the Miranda waiver form only after he gave his statement. On cross- examination he admitted that the officers were good to him. He also admitted that he was familiar with the right to remain silent and the right to an attorney. (Tr. 94.) He stated that Parkinson was lying when she testified that he was told his Miranda rights. Defendant denied receiving his Miranda rights on the three occasions when Parkinson stated she read the Miranda rights to him. (Tr. 88, 95, 98.) The trial court denied defendant's motion to suppress. The case proceeded to trial before a jury on February 1, 1995. At trial, the following relevant testimony was presented. Dr. Stanley Seligman, the doctor who performed the autopsy, testified about the path of the bullet. Seligman stated that, in his opinion, the gun that shot the victim was not held at waist level. This opinion contradicted defendant's written statement to the police in which he described the victim holding the gun by her waist when it went off. Three persons from the Cuyahoga County Coroner's office testified at trial. Kay May stated that she performed a Trace Metal Detection test on the victim. After reviewing the results of tests performed on the victim, May opined there was no evidence that the victim held or fired a gun when she was killed. Jeff Wagner stated that from the results of a Bashinski Test he concluded the gun was not fired near the victim's shirt. Similarly, Sharon Rosenberg testified that tests on the victim - 5 - established that the victim did not have any recent contact with a metal object or fired a gun. Three children, Quiana Pace, Dwight Wilson, and Lonnie Yeager, testified that they saw defendant walking down the street with a gun. They observed him knock on Pettis' front door and then forcibly enter. Shortly after, the children heard gunshots and then saw defendant leave the house with the gun. Carol Abbott, a ticket agent for Greyhound bus lines in Cleveland, testified that at 3:51 p.m. on August 4, 1995, she sold the defendant a one-way bus ticket for West Virginia. The bus was scheduled to depart at 5:15 p.m. Taking the stand, defendant stated the victim was playing with the gun and defendant told her to stop playing with it. He explained that the gun went off when she handed the gun to the defendant with the barrel pointing toward her face. The jury found defendant not guilty of aggravated murder as charged in count one and not guilty of aggravated burglary as charged in count two. The jury did, however, find the defendant guilty of the lesser included offense of murder with a firearm specification. Defendant received a sentence of fifteen years to life for the murder charge. This sentence is to run consecutively with the sentence of three years mandatory jail time for the firearm specification. Defendant's sole assignment of error in his appellate brief states as follows: I. APPELLANT'S SIGNED STATEMENT WAS A PRODUCT OF COERCION AND A VIOLATION OF HIS RIGHTS UNDER ARTICLE I, - 6 - SECTION 14 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. In this assignment, defendant argues that the trial court erred by not granting his motion to suppress the statement given to police. Defendant contends this statement was made in violation of defendant's constitutional rights as enunciated in Miranda v. Arizona (1966), 384 U.S. 436. The Supreme Court has set forth the standard of review when a juvenile claims a confession was involuntarily induced: 1. 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. [Citations omitted.] In re Watson (1989), 47 Ohio St.3d 86, syllabus paragraph one. In applying this test, this court has cautioned that "the court must scrutinize closely the validity of waivers of constitutional rights when minors are involved." In re Greer (Sept. 17, 1992), Cuyahoga App. No. 63037, unreported at 6. See also, In re Gault (1967), 387 U.S. 1. When the trial court rules on a motion to suppress, the credibility of the witness is a matter for the judge acting as the trier of fact. State v. Fanning (1982), 1 Ohio St.3d 19. Moreover, when there is substantial evidence to support the factual findings of the trial court, the decision on the motion to suppress will not be disturbed on appeal absent an error of law. State v. DePew (1988), 38 Ohio St.3d 275. - 7 - In the case at bar, competent evidence was presented to support the trial court's finding that, under the totality of circumstances standard, defendant voluntarily waived his Miranda rights. First, defendant was not subjected to any substantial physical deprivation; on the contrary, he was fed and allowed to sleep on his trip from Dublin. Second, the length of any interrogation was minimal, lasting only forty minutes approximately. Third, because he had prior arrests, he was familiar with his right to remain silent and his right to an attorney. Finally, there is testimony to support the prosecution's contention that he was read and understood his Miranda rights. He appeared alert and demonstrated that he could read and write. Parkinson testified that he was read his Miranda rights three times, once orally in Dublin, once orally in Cleveland, and a third time from the Miranda waiver form. This form, which contained his name and the charges, was read to and signed by defendant. Defendant argues his statement should be suppressed additionally because he asked to call his father and was not given the opportunity to do so. (Tr. 87, 88.) There is contradictory evidence. Officer Parkinson testified that, once in Cleveland's custody, defendant did not ask to call his parents (Tr. 53, 56.) and that the Ironton authorities notified the parents of the charges pending against defendant. The officer further testified that a member of the Cleveland Homicide Unit spoke to defendant's parents. In any event, "Ohio decisions, - 8 - considering the totality of the circumstances in juvenile cases, have not turned solely on the presence or absence of a parent." State v. Bobo (1989), 65 Ohio App.3d 685, 690. Moreover, the Ohio Supreme Court has consistently declined to require that a parent or guardian be present when a minor chooses to waive his or her Miranda rights. Watson, supra at 89; State v. Bell (1976), 48 Ohio St.2d 270, 276-277, reversed on other grounds, Bell v. Ohio (1978), 438 U.S. 637. Defendant also contends his statement should be suppressed because he was taken to the Homicide Unit, rather than to the juvenile facility required by Juv.R. 7. The first part of this rule follows: (A) Detention: Standards. A child taken into custody shall not be placed in detention or shelter care prior to final disposition unless any of the following apply: (1) Detention or shelter care is required to protect the child from immediate or threatened physical or emotional harm; (2) The child may abscond or be removed from the jurisdiction of the court; (3) The child has no parent, guardian, custodian or other person able to provide supervision and care for the child and return the child to the court when required; (4) An order for placement of the child in detention or shelter care has been made by the court. (B) Priorities in Placement Prior to Hearing. A person taking a child into custody shall, with all reasonable speed, do either of the following: (1) Release the child to a parent, guardian, or other custodian; (2) Where detention or shelter care appears to be required under the standards of division (A) of this rule, bring the child to the court or deliver the child to a place of detention or shelter care designated by the court. - 9 - Defendant concedes that "[b]ecause of the nature of the crime and the fact that Alfonzso left the jurisdiction for Ironton, the state had legitimate grounds for detaining him." (Defendant's brief at 11-12.) Therefore, only section B of Juv.R. 7 is at issue. This rule is incorporated in R.C. 2151.311, which further states, in part, as follows: (C)(1) Before taking any action required by division (A) of this section, a person taking a child into custody may hold the child for processing purposes in a county, multicounty, or municipal jail or workhouse, or other place where an adult convicted of crime, under arrest, or charged with crime is held for either of the following periods of time: (a) For a period not to exceed six hours, if all of the following apply: (i) The child is alleged to be a delinquent child for the commission of an act that would be a felony if committed by an adult; (ii) The detention is in a room totally separate and removed by both sight and sound from all adult detainees; (iii) The child is supervised at all times during the detention. Section C of this statute clarifies that it controls before any 1 action required by section (A) is to be taken. Section C sets a cap of six hours for holding a juvenile in an adult center. The rule, which is more general, requires "reasonable speed." The rule does not say "immediately." In the case at bar, defendant was in the Homicide Unit for under an hour before he was taken to the Juvenile facility. While in the Homicide Unit, he was supervised at all times and was never in contact with any adult detainees. Regarding the 1 Section (A) is the codification of Rule 7(B). - 10 - procedure for the apprehension of a juvenile, the police complied with R.C. 2151.311(C)(1) as well as 2151.311(A), the procedure separately stated in Juv.R. 7(B). A one-hour delay between taking the defendant to the Homicide Unit and subsequently releasing him to the care of the juvenile detention facility was not unreasonable. Another court, previously rejecting the same argument defendant presents, has stated, "We note, without deciding, that the officer may have violated Juv.R. 7(B). This, however, is only one aspect of the totality of circumstances." State v. Ashurst (Aug. 31, 1981), Clermont App. No. CA-995, unreported at 3. In Ashurst, the court did not suppress a statement made at 3:55 a.m., by a juvenile who was not permitted to call his parents and who was in police custody for over eight hours. This court in State v. Bobo (1989), 65 Ohio App.3d 685, similarly ruled that the police failure to take a juvenile to a juvenile detention center did not render inadmissible statements he made while in custody. In Bobo a seventeen-and-one-half- year-old claimed "his remarks were coerced because police held him for twelve hours, with one hand cuffed to a chair, in the narcotics unit, without food, sleep, or the presence of his parents." Id. at 689. The case at bar presents a substantial contrast to these facts: there was no physical deprivation, no handcuffing at the station, no 12-hour delay. Accordingly, the circumstances in the case at bar do not require the suppression of defendant's statement to the police. See also, Fare v. - 11 - Michael C. (1979), 442 U.S. 707, in which the Supreme Court held that a statement made to police by a juvenile who was not permitted to talk to his probation officer passed the totality of the circumstances test. Defendant's first assignment of error is overruled. Defendant's first pro se assignment of error states as follows: I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION, WHICH DENIED APPELLANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT. In this assignment, defendant argues that he was denied effective assistance of counsel when his trial counsel failed to object to the state's expert, Dr. Stanley Seligman, who performed the autopsy on the deceased. He testified that based on the trajectory of the bullet, the gun was not held at waist level. Defendant further claims his counsel was deficient for not obtaining an independent expert to rebut the testimony of Seligman. The claim of ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation" and, in addition, that prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus; see, also, Strickland v. Washington (1984), 466 U.S. 668. The burden is on appellant to prove ineffectiveness of counsel; trial counsel is strongly presumed to have rendered adequate - 12 - assistance. State v. Smith (1985), 17 Ohio St.3d 98. The establishment of prejudice requires proof "that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been different." State v. Bradley, supra, paragraph three of the syllabus. Defendant's claim of ineffective assistance of counsel is meritless. First, regarding trial counsel's failure to call an independent expert, the Supreme Court has stated, "[a]s an initial matter, the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel. State v. Thompson (1987), 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407, 417." State v. Nicholas (1993), 66 Ohio St.3d 431, 436. Second, defendant's trial counsel extensively cross- examined Seligman concerning his findings. Accordingly, defendant's first pro se assignment is overruled. Defendant's second pro se assignment of error states as follows: II. THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] MOTION TO DISMISS THE CHARGES, FOR FAILING TO PROVIDE A SPEEDY TRIAL AS REQUIRED BY O.R.C. 2945.71, THE U.S. CONSTITUTION, AND THE OHIO CONSTITUTION. In this assignment, defendant asserts that he was denied his right to a speedy trial pursuant to R.C. 2945.71. This statute requires that a person against whom a felony charge is pending be brought to trial within 270 days after being arrested. Each day during which the accused is held in jail in lieu of bail on the pending charges is counted as three days. R.C. 2945.71(E); State v. Howard (Mar. 4, 1994), Scioto App. No. 93CA2136, unreported; - 13 - State v. MacDonald (1976), 48 Ohio St.2d 66. In other words, "a felony defendant in Ohio must be tried within ninety days if incarcerated on the pending charge or within two hundred seventy days if on bail." State v. Coleman (1989), 45 Ohio St.3d 298. Relevant to the speedy trial issue in the case at bar, the following facts were stipulated to at trial. On August 8, 1994, defendant was arrested and held in the Cuyahoga County Juvenile Detention Facility. On October 31, 1994, a hearing was held to determine whether defendant should be bound over to the General Division of Common Pleas Court. On November 1, 1994, the order binding defendant over was signed. On January 20, 1995, defendant filed the motion to suppress the statement. The trial began on January 30, 1995. Because defendant was incarcerated, he had to be brought to trial within 90 days. Defense counsel conceded that if November 1, 1994, is the day the time begins to run, defendant was brought to trial within the appropriate time frame. At trial, defendant argued that, contrary to State v. Williams (1975), 42 Ohio St.2d 433, the time the defendant spends in the custody of Juvenile Court should be counted for speedy trial purposes. Since Williams has not been overruled, we are thus bound by the Supreme Court's holding that time spent in the custody of Juvenile Court does not count for this purpose. Defendant was brought to trial within 90 days of November 1, 1994, the date he was bound over from Juvenile Court to the General Division. This assignment of error is overruled. - 14 - Defendant's third pro se assignment of error states as follows: III. OTHERS [SIC] ERRORS APPEAR IN THE RECORD THAT ARE NOT SPECIFICALLY RAISED AND SET FORTH IN THIS APPEAL BUT CONSTITUTE "PLAIN ERROR" AFFECTING SUBSTANTIAL RIGHTS PURSUANT TO OHIO RULES OF CRIMINAL PROCEDURE, RULE 52(B). SEE: ANDERS V. CALIFORNIA, 386 U.S. 738. In this assignment, defendant argues that there are errors in the record, but does not specify where. App.R. 12(A)(2) precludes this court from searching for such unspecified errors and states as follows: (2) The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A). See also, North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342; State v. Gibson (Nov. 21, 1991), Cuyahoga App. No. 59541, unreported. Accordingly, this assignment of error is overruled. Judgment affirmed. - 15 - 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 McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .