COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69077 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MATTHEW EDWARDS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 11, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-316751 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD F. FERAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: NICHOLAS K. THOMAS 21801 Lakeshore Boulevard Euclid, Ohio 44123 - 2 - O'DONNELL, J.: Matthew Edwards appeals the jury verdict entered in Common Pleas Court finding him guilty of possession of cocaine. On October 11, 1994 undercover Cleveland police officers Thomas and Cunningham responded to complaints of drinking, drugs, and gambling in the area of East 105th and Drexell in Cleveland. As Cunningham drove the undercover police car through that area, the officers noticed a group of males gambling and smoking marijuana in a church parking lot, some of whom were looking at what they believed to be plastic bags filled with drugs. Thomas and Cunningham then radioed this information to police headquarters and Detectives Roman and Preston responded to the radio call. When Roman and Preston approached the men and identified themselves as police officers, one of the men fled and Roman chased him, leaving Preston alone with the rest of the men, including Matthew Edwards. Preston then observed Edwards and another man making furtive gestures behind their backs despite Preston's direction for the men to show their hands. Edwards wore his pants in a "sag", that is to say, very baggy pants, hung low around the waist so that the top of the underwear is visible above the pants. Thus, when Preston performed a pat-down search on Edwards, he noticed a bulge inside the waistband of Edwards' underwear which outlined a plastic bag filled with rocks of crack cocaine. Preston removed the bag, - 3 - placed Edwards under arrest, and charged him with trafficking in drugs, possession of cocaine, and possession of criminal tools At trial, following the close of the state's case, defense counsel moved for acquittal. The trial court granted the motion, in part, and dismissed the criminal tools charge. After the close of the case, the jury returned its verdict finding Edwards guilty of possession of cocaine but not guilty of drug trafficking. Edwards now appeals and assigns three errors for our review. The first assignment of error states: THE DEFENDANT 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. Edwards argues he did not receive effective assistance of counsel because defense counsel did not file a motion to suppress evidence. The state, on the other hand, contends Edwards received effective assistance of counsel and defense counsel's decision not to file a motion to suppress did not prejudice Edwards because the trial court might not have granted the motion. The issue, then, for our resolution is whether Edwards received effective assistance of counsel in this case. In determining this issue, we are aware that a reviewing court initially presumes a duly licensed counsel performed - 4 - competently. State v. Lytle (1976), 48 Ohio St.2d 391. Further, the Ohio Supreme Court's decision in State v. Bradley (1989), 42 Ohio St.3d 136, is instructive as stated in paragraph two of its syllabus: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) In order to demonstrate prejudice resulting from counsel's performance, the defendant "must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." Id. at paragraph three of the syllabus. Furthermore, we recognize that a failure to file a motion to suppress could constitute ineffective assistance of counsel where there was a possibility that it would have been granted. See State v. Garrett (1991), 76 Ohio App.3d 57. However, it would not constitute ineffective assistance of counsel where the defense counsel could reasonably have decided that the filing of a motion to suppress would have been a futile act. See State v. Martin (1983), 20 Ohio App.3d 172. With these standards in mind, we consider the facts in this case where defense counsel did not file a motion to suppress the cocaine evidence seized from Edwards. In order to determine whether this omission fell below an objective standard of - 5 - reasonable representation and prejudiced Edwards, we consider whether there exists a reasonable probability that the result of the trial would have been different had counsel filed the motion to suppress. The record reveals that police officers arrived at the scene in response to complaints of gambling and drug activity in the area. Further, testimony by several police officers revealed that they saw the defendant and others gambling, drinking, and smoking marijuana, and one officer saw Edwards looking at plastic bags. When Detectives Roman and Preston arrived, one of the men ran and Roman chased after him, leaving Preston alone with the remainder of the group including Edwards. Edwards also made furtive gestures reaching behind his back when Preston asked him to show his hands. For his own safety, Preston performed a pat- down search of Edwards, and he noticed a bag of crack cocaine inside the waistband of Edwards' underwear, removed the bag, and placed Edwards under arrest. In addition, the U.S. Supreme Court has held that police may seize nonthreatening contraband detected through the sense of touch during a protective patdown search when the identity of the contraband is immediately apparent to the searching officer. Minnesota v. Dickerson (1993), 508 U.S. ____, 113 S.Ct. 2130, 124 L.Ed.2d 334. Furthermore, in applying Dickerson, supra, this court has held that a police officer's search and seizure of cocaine did not violate the Fourth Amendment where the officer - 6 - felt a wadded up plastic bag in the coat of the defendant which he had seen another man place there, and the incriminating nature was immediately apparent. State v. Hunter (1994), 98 Ohio App.3d 632. In light of the foregoing evidence and the analysis applied in both Dickerson and Hunter, supra, we cannot conclude that the trial court would have granted the motion nor eliminate a reasonable belief by defense counsel that filing would have been a futile act, because the incriminatory nature of the crack seized by Detective Preston was immediately apparent to him. Therefore, we cannot say that the trial result would have been different had the motion been filed, and thus, in accordance with Bradley, supra, counsel's performance did not prejudice Edwards. Accordingly, Edwards was not denied effective assistance of counsel and this assignment of error is overruled. The second assignment of error states: THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL BASED UPON HIGHLY PREJUDICIAL TESTIMONY AND THE DEFENDANT 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. Edwards urges the trial court erred in not granting a mistrial because when a police officer testified about outstanding warrants, the court initially gave a limiting instruction to the jury, and later agreed to grant a mistrial; thereafter, defense counsel withdrew the motion for mistrial but the court did not - 7 - inquire whether the defendant agreed with counsel's decision; Edwards further urges that defense counsel's withdrawal of that motion denied him effective assistance of counsel. The state, on the other hand, argues that the decision to withdraw the motion for a mistrial did not constitute ineffective assistance of counsel and did not prejudice Edwards because defense counsel made a strategic decision to withdraw his motion for a mistrial and if the motion had not been withdrawn, Edwards may have been convicted of additional charges in a later trial. The issues then, for our resolution are whether the trial court erred in not granting the mistrial and whether Edwards was denied effective assistance of counsel because his counsel withdrew the motion for a mistrial after the court had agreed to grant it. The decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court and should not be ordered in a criminal case unless the substantial rights of the accused or the prosecution are adversely affected. State v. Sage (1987), 31 Ohio St.3d 173, State v. Reynolds (1988), 49 Ohio App.3d 27. In this case, Detective Preston testified that when he placed Edwards under arrest, he had five outstanding warrants. This testimony is inadmissable as other acts evidence under Evid. R. 404(B) to show the character of an individual. State v. Miller (1988), 44 Ohio App.3d 42. Defense counsel immediately - 8 - objected and at sidebar moved for a mistrial. The trial court instructed the jury to disregard the statement and dismissed the jurors for the day. The trial court then scheduled a hearing on the issue of mistrial for the following morning. The following day, the trial court agreed to grant the mistrial, whereupon defense counsel explained the request for a mistrial would be withdrawn if the trial court would give a curative instruction. Curative instructions are presumed to be effective. State v. Zuern (1987), 32 Ohio St.3d 56. See also State v. Cockshutt (1989), 59 Ohio App.3d 87. Furthermore, nothing in the record indicates that Edwards objected to defense counsel's decision, nor is the trial court obligated to ascertain whether the defendant agrees with all decisions made by counsel during the course of trial. Accordingly, the trial court did not abuse its discretion in not granting a mistrial. Next, we consider whether defense counsel's withdrawal of the motion for a mistrial constitutes ineffective assistance of counsel. In accord with the case of State v. Bradley, supra, we consider whether counsel's withdrawal of the motion for mistrial fell below an objective standard of reasonable representation and, but for the action of counsel, the result of trial would have been different. We also recognize that a defendant is not deprived of effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319. - 9 - In this case, defense counsel timely objected to the improper testimony of Detective Preston and moved for mistrial. However, the following morning, defense counsel advised the court that the motion would be withdrawn if the court gave a curative instruction, which the court did. In addition, immediately after the close of the state's case, the defense moved for acquittal under Crim. R. 29, the trial court granted the motion in part, and dismissed one of the three charges against Edwards. Based on the foregoing, we conclude that defense counsel evaluated the progress of the case and the strength of the evidence, and could have reasonably concluded that a re-trial would have resulted in a less favorable situation for the defendant. Therefore, we cannot say the withdrawal of the motion for mistrial fell below an objective standard of reasonable representation. Furthermore, because curative instructions are presumed to be effective and the court gave such instructions to the jury, we cannot conclude the outcome would have been different but for counsel's decision. Accordingly, the withdrawal of the motion for mistrial did not deny Edwards effective assistance of counsel, and this assignment of error is overruled. The third assignment of error states: THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S REQUEST TO RETAIN A NEW ATTORNEY THUS DEPRIVING THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL UNDER THE UNITED STATES - 10 - CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. Edwards argues that the trial court erred in not granting his request to retain a new attorney on the morning of trial because he was dissatisfied with the services of his lawyer and the court did not inquire into the reason for his request. The issue for our resolution is whether the trial court acted properly in denying Edwards' request to retain a new attorney. On the morning of trial, Edwards' court-appointed attorney advised the court that Edwards wished to retain different counsel and apparently had acquired enough money to do so. The trial court denied the request because the new lawyer had not been retained, was not present in the courtroom, and trial was about to commence. This untimely request on the morning of trial without the presence of new counsel amounted to a request for a trial continuance to obtain new counsel. The granting or denying of a continuance is a matter within the discretion of the trial court, reviewable as an abuse of that discretion based on the circumstances presented in each case. State v. Beuke (1988), 38 Ohio St.3d 29. See also, State v. Price (1973), 34 Ohio St.2d 43 and Thurston v. Maxwell (1965), 3 Ohio St.2d 92. Thus, we cannot conclude the trial court abused its discretion in denying the request to retain a new attorney, and this assignment of error is overruled. - 11 - Judgment affirmed. - 12 - 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. MATIA, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .