COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69202 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANDRE COLEMAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 9, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-261085 JUDGMENT Reversed and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JOHN PATRICK PARKER, ESQ. Cuyahoga County Prosecutor DAVID DOUGHTEN, ESQ. GEORGE J. SADD, Assistant 4403 St. Clair Avenue THOMAS E. CONWAY, Assistant Cleveland, Ohio 44103 Prosecuting Attorneys 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Andre Coleman appeals from his conviction following a bench trial for murder (R.C. 2903.02) of one Eugene Lewis on December 8, 1990. Defendant's first assignment of error asserts that his jury waiver was invalid because it was not filed with the clerk of the trial court and made part of the record as required by R.C. 2945.05. Defendant also contends his conviction was against the manifest weight of the evidence. We find merit to the appeal and reverse for the reasons hereinafter stated. A Cuyahoga County Grand Jury indicted the defendant, Andre Coleman, for one count of aggravated murder in violation of R.C. 2903.01 for the shooting of Eugene Lewis. The first count included a firearm specification pursuant to R.C. 2929.71. The indictment also included a charge of having a weapon while under disability in violation of R.C. 2923.13. The defendant pleaded not guilty at his arraignment on January 17, 1995. On June 24, 1995, a jury was called and the case proceeded to jury selection. On June 25, after the State completed its voir dire of the prospective jurors, the defendant waived his right to a jury trial in open court. A trial to the court went forward on June 25, 1991. Following the completion of the evidence, the trial court granted a defense motion to dismiss the element of prior calculation and design on the aggravated murder charge. On July 1, 1991, the court found the defendant guilty of the lesser included - 3 - offense of murder in violation of R.C. 2903.02 with a firearm specification and guilty of having a weapon while under disability. On July 18, 1991, the court sentenced the defendant to serve a term of fifteen years to life on the murder count and two years for the second count. The two counts are being served concurrently to each other but consecutively to the three year firearm enhancement. This Court granted the defendant leave to file a delayed appeal on July 21, 1995. Defendant was charged with the shooting and killing of Lewis at a crowded birthday party on December 7, 1990, at which fighting and shooting erupted between rival street gangs. Over 70 people were present at the party. Numerous shots were fired. Four other people were wounded. The critical factual issue at trial was the identity of Lewis' killer. The State called fourteen witnesses. The autopsy protocol, as well as other State exhibits, were stipulated by the parties and introduced into evidence. The State's witnesses identified defendant as the killer. Antonio Bell was a member of an East side street gang known as the Superior Road Dogs or Road Dogs. Defendant was also a member and friend of Bell. Bell went to the party with other friends on Cleveland's near West side on December 7, 1990 at around 9:00 p.m. Bell and the East side Road Dogs were at the party to do some "gang-banging" or fighting. Several West side street gangs were represented at the party. Defendant's nephew, Perry Coleman, got - 4 - into a fight with a West side gang member. Defendant left the party when he learned that the Westsiders were armed. Arguments inside the party led to fighting outside between the rival gang members. When defendant and a friend of his returned to the party, gunfire erupted. Bell was sucker-punched when he heard gunshots. Bell did not see who was doing the shooting. After the shooting, Bell went back to the Alandra Apartments on the East side. In the parking lot defendant showed Bell a long- barreled .38 caliber revolver and stated, "Boy, you see me get that nigga." Defendant also asked Bell whether, "*** you see me shoot that dude in the back?" According to Bell, defendant was the only person in the Wade Park parking lot with a gun. Six hours after the shooting, Bell made a written statement to the police in which he related what had occurred. A veteran Cleveland police officer from the Scientific Investigative Unit Lab analyzed the bullet removed from the victim's body during autopsy and testified that it was fired from either a .357 revolver or a .38 caliber revolver. Sgt. John Fransen of the Cleveland Police Department arrested defendant at 10:45 a.m. on December 8, 1990, on the charge of aggravated murder. After being read his rights, the defendant denied that he had been any place on Cleveland's West side on the previous night when Lewis was shot. Defendant told police he was at a party in Cleveland Heights at the time of the shooting. - 5 - Sharon Rosenberg, a forensic scientist with the Coroner's Office Trace Evidence Unit, examined the victim's clothing and testified that the muzzle of the murder weapon was more than two to three feet away from the victim when the lethal shot was fired. Ronald Richardson testified that he knew the defendant by his street name "Squig." Richardson was at the party in the early morning hours of December 8, 1990, at the scene where the murder occurred. He saw the defendant with a long-nosed (barrel) black handgun standing in the middle of the street. Defendant fired the gun three times into a crowd of persons from about thirty feet. Richardson saw no one else with a gun. He gave a written statement regarding these observations to the police. Robert Gray also testified he was at the birthday party and saw the defendant there. The party ended when fighting erupted between the East side and West side gang members. Gray gave a written statement to police on December 9, 1990, in which he told the police that he saw the defendant shooting towards the crowd. At trial he denied that he gave the police that information. However, Gray testified that the shooter was wearing a black coat which was what defendant wore that night. Ms. Terri Dubois testified she was at the party. After the fighting broke out, the adult tenant, Brenda Golson, made everyone go outside. As Ms. Dubois was leaving, she heard shots and the victim was brought back into the house where he died. - 6 - Ms. Mary Jane Jones was the honoree at the birthday party. She testified defendant was at her party; that a fight broke out between persons from the Rocky River Drive projects and Antoine Bell and his gang, the Road Dogs; and she heard the shooting. Ms. Monique Golson gave the birthday party for Ms. Jones. She saw defendant there. She further testified to the fights that broke out; her mother throwing everyone out of the house; and the resultant shootings outside. The brother of Ms. Golson, Leo Golson, testified to a fight breaking out at the party; he identified defendant and the black coat he was wearing. He did not see defendant after the shooting. Golson identified defendant's nephew, Perry Coleman, as one of the principal combatants in the fighting between the gangs. Simone Smith also saw defendant at the party. She knew Antonio Bell and defendant to be members of the Road Dogs gang, and defendant was the leader, not Bell. Defendant was not drunk, but acted sober throughout. Detective Leo Allen investigated the murder and participated in defendant's arrest. At least thirty-six witnesses were questioned; written statements were taken from defendant's friends, Antonio Bell, Robert Gray, and Ronald Richardson within days of the murder; after his arrest, defendant said he was never at the party. The murder weapon was never found. After defendant's Crim R. 29 motion for acquittal was denied, defendant called five witnesses. - 7 - Pamela Gray, defendant's sister, attempted to rebut Bell's testimony placing defendant as the shooter at the scene. Ernest Tate, a friend of defendant testified that he drove to the party with defendant, but that defendant did not have a gun nor did he shoot anyone. Shelfie Carter, a friend of defendant, also testified he never saw defendant with a gun at the party. Perry Coleman, the drunken nephew of defendant, was a convicted drug dealer and involved in the disturbance that ended up in the shooting. The defendant himself denied committing the murder. The State's sole rebuttal witness, Detective James Svekric, testified that defendant lied to the police at the time of his arrest about where he was the night of the murder. After the judge returned a guilty verdict of murder with a firearm specification and having a weapon while under disability, defendant made an oral motion for new trial based on the "recantation" of Antoine Bell. The court held a hearing in which both Bell and Detective Allen testified. The court determined that Bell had testified truthfully at trial and that his recantation "is simply not to be believed." Defendant was then sentenced. As previously noted, this Court allowed a delayed appeal. We will address the assignments of error in the order asserted. - 8 - I. THE APPELLANT'S WAIVER OF A JURY TRIAL IS INVALID BECAUSE THE WAIVER WAS NOT FILED WITH THE CLERK AS IS REQUIRED BY R.C. 2945.05. R.C. 2945.05 reads as follows: 2945.05 Defendant may waive jury trial In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I , defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury." Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. For this assignment of error, defendant relies heavily on the recent decision of the Ohio Supreme Court in State v. Pless (1996), 74 Ohio St.3d 333, paragraphs one and two of the syllabus: In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury. (State v. Tate [1979], 59 Ohio St.2d 50, 13 O.O.3d 36, 391 N.E.2d 738, and State ex rel. Jackson v. Dallman [1994], 70 Ohio St.3d 261, 638 N.E.2d 563 construed and applied.) - 9 - The failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction. (State v. Tate [1979], 59 Ohio St.2d 50, 13 O.O.3d 36, 391 N.E.2d 738; State ex rel. Jackson v. Dallman [1994], 70 Ohio St.3d 261, 638 N.E.2d 563; and State ex rel. Larkins v. Baker [1995], 73 Ohio St.3d 658, 653 N.E.2d, harmonized.) Crim. R. 23(A) also bears on the issue presented insofar as it states in relevant part: Trial by jury or by the court (A) Trial by jury. In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. *** If at all possible, we must reconcile the requirements of R.C. 2945.05 with Crim. R. 23(A). Crim. R. 23(A) allows the defendant to waive in writing his right to trial by jury prior to commencement of trial, or even during trial with approval of the court and consent of the prosecuting attorney. To this, R.C. 2945.05 adds the procedural requirement that such waiver "shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof." In State v. Tate (1979), 59 Ohio St.2d 50, the Supreme Court held that R.C. 2945.05 was not superseded by Crim. R. 23(A) "since there is no conflict between Crim. R. 23(A) and R.C. 2945.05." Id. at 53-54. See, also, State v. Johnson (1992), 81 Ohio App.3d 482, 487; State v. Harris (1991), - 10 - 73 Ohio App.3d 57, 63. The State contends that the defendant's waiver of jury trial occurred after commencement of trial and the Pless decision does not govern. Given the scope of the Supreme Court's ruling in Pless, we are constrained to disagree with the State's position. Defendant's waiver of a jury did not occur until after the jury selection process began. The jury, however, was not impaneled or sworn when the waiver occurred. In our view, it makes no difference for purposes of complying with R.C. 2945.05 and the Pless decision whether the waiver came "before commencement of trial" or "during trial" within the meaning of Crim. R. 23(A). Although the law is varied on this subject, it appears that "[i]n Ohio trial has ordinarily been deemed commenced when the jury is impaneled and sworn." Douthitt v. Garrison (1981), 3 Ohio App.3d 254, 256, citing Wagner v. State (1885), 42 Ohio St. 537. See, also, State v. Johnson, supra; State v. Bak (March 1, 1980), Cuyahoga App. No. 56619, unreported; State v. Waddell (Sept. 29, 1994), Franklin App. No. 94AP03-328, unreported. In this case, it was midway through the voir dire process that defendant decided that his chances for a favorable verdict were better with a trial to the court. At that point in time, defendant made an oral motion to waive a jury trial on the record. The prosecutor initially objected. He argued the fundamental unfairness of allowing defendant to use the jury waiver statute in such a manner. The prosecutor, however, eventually acquiesced and - 11 - consented to the jury waiver. Defendant then executed a written waiver of trial by jury in the form prescribed by R.C. 2945.05. The actual written jury waiver form was offered to the court and entered in the record as defendant's Motion Exhibit A as part of his motion to waive a jury trial. Only after determining that defendant's waiver was knowingly, intelligently, and voluntarily made, and that the defendant's Motion Exhibit A, dated and initialled by the judge, was made part of the record, did the court, pursuant to Crim. R. 23(A), assert jurisdiction and grant defendant's motion to waive a jury trial. These events were all duly recorded and transcribed on the official court transcript before us on appeal. (Tr. 1-14). A reading of the transcript reveals a prosecutor and trial court observing extreme caution to avoid any possible error, or grounds for a future claim of error, in the handling of this jury waiver situation. Nevertheless, the Pless decision compels us to reverse the convictions below because, in construing R.C. 2945.05, the Supreme Court has mandated that the jury waiver must be "in writing, signed by the defendant, filed in the criminal action and made a part of the record." The waiver herein was in writing, signed by the defendant and made a part of the record by incorporation in the case file as a motion exhibit, but it was not "filed in the criminal action" according to the Supreme Court's interpretaton in Pless. We have examined the original waiver and no time stamp or filing receipt of the clerk's office appears - 12 - thereon nor does the official docket make any reference to the waiver. The State argues that circumstances changed once the "trial started" and the waiver procedure dictated by R.C. 2945.05 was no longer controlling. As appealing as this argument is, and as unfair as it seems to allow the defendant to get a preview of the prospective jurors before exercising his right to waiver, nevertheless that does not free us from the obligations of enforcing R.C. 2945.05 as construed by the Supreme Court in Pless. As held in Pless and Tate, supra, since there is no conflict between Crim. R. 23(A) and R.C. 2945.05, the statute must be given effect. It is true that "[s]uch waiver may also be made during the trial with the approval of the court and the consent of the prosecuting attorney ***." Crim. R. 23(A). The defendant may waive his or her right to a jury trial at anytime during the trial up until the time the jury has rendered a verdict or is deadlocked in reaching a verdict. Columbus v. Voyles (1972), 32 Ohio App.2d 309, 312. Although that is so, that does not mean that "such waiver" does not still have to comply with R.C. 2945.05. The very fact that Crim. R. 23(A) states that "such waiver may also be made during the trial" refers back to the form of waiver and the procedure required prior to trial. The most recent reported case by this Court, State v. Billings (1995), 103 Ohio App.3d 343, must also give way to the Pless - 13 - decision. In Billings, we enforced a jury waiver and distinguished Jackson v. Dallman (1994), 70 Ohio St.3d 261, stating as follows: Our case presented substantially different facts. Anton Billings was present in court with counsel and the trial judge carefully examined him, explained his rights and determined his action in seeking the waiver was knowingly, intelligently and voluntarily entered. This is recorded in a certified copy of the proceedings. Next, our examination of the file shows that the waiver is contained in and made a part of the record in this case. It is the original document and bears the signature of the defendant which is attested and witnessed by trial counsel in this case. We further find that unlike in Jackson, the clerk's docket sheet verifies that the knowledgeable trial judge entered a journal entry contemporaneous with the signing of the waiver which was journalized and is part of the docket sheet in this file. Since a court speaks through its journal, the trial judge has eliminated any possible issue regarding the authenticity of the jury waiver which is in the record in this case. In the instant case, even were we to be influenced by Billings, no journal entry was made and the clerk's docket sheet does not reference any jury waiver entry. During oral argument, the State raised for the first time the claim that R.C. 2945.05 is unconstitutional. The defendant did not object to the State's argument and in the interest of justice we allowed the State to argue the point. An appellate court may allow new issues or theories to be raised for the first time on appeal when there has been a significant change in the law since trial. Standard Industries, Inc. v. Tigrett Industries, Inc. (1970), 397 U.S. 586, 587, 90 S.Ct. 1310, 25 L.Ed.2d 590; United States v. - 14 - Patrin (C.A.6, 1978), 575 F.2d 708, 712. Pless certainly represents a significant change in the binding law we must follow. The State's new theory suggests that R.C. 2945.05 forces the trial court to abandon its position of neutrality by compelling the trial judge to become involved in the filing process of the jury waiver and seeing that the waiver is filed with the clerk and time- stamped. As we understand the State's argument, for which it supplied no authorities, it is basically contending that due process is violated by requiring the court's participation in R.C. 2945.05. It is true that due process requires an independent and neutral tribunal. See Marshall v. Jerrico, Inc. (1980), 446 U.S. 243, where it is stated as follows: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266-267, 98 S.Ct. 1042, 1043, 1050- 1052, 1053, 1054, 55 L.Ed.2d 252, (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Mathews v. Eldridge, U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, - 15 - J., concurring), by ensuring that no person will be deprived of his interest in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. In criminal cases, due process is designed to protect the defendant, not the State. In any event, we see no violation of due process in requiring the trial court to assure that the statute is literally complied with before giving effect to a jury waiver. We find the State's constitutional argument without merit. We have no discretion in this matter. We are obliged to follow the Supreme Court's decision in Pless which mandates strict compliance with R.C. 2945.05. We find that the essential requirements of Pless were not met. There is no evidence of record that the waiver was "filed in the action" by the clerk's stamp or that the waiver ever got on the docket of the case. Assignment of Error I is sustained. II. THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence - 16 - for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. The evidence at trial, if believed by the fact-finder, established that defendant was a leader of an East side street gang. While attending a party on the near West side with other members of defendant's gang, trouble broke out with West side street gang members involving his nephew. Upon learning that the rival gang members might be armed, defendant left the party for a period of time. When he returned, widespread violence erupted at the party and spilled out into the street. Defendant produced a handgun, and from a distance of thirty feet, fired three times into a crowd of people which included the victim. Defendant fled the scene. Defendant, soon afterwards, boasted about killing the victim to a fellow gang member. When arrested, defendant lied to the police by not even being at the party, a fact controverted by numerous other attendees. We find the convictions were not against the manifest weight of the evidence. Assignment of Error II is overruled. Given our disposition of Assignment of Error I, the defendant's convictions and sentences are reversed and the case is - 17 - remanded for a new trial or other appropriate proceedings consistent with this opinion. - 18 - It is ordered that appellant recover of appellee his 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER 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 .