COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69558 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHARLES WILLIAMS, JR. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-311106 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor NORMAN KOTOCH, Assistant FRANCINE GOLDBERG, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: VALERIE R. ARBIE 1200 West Third Street 100 Lakeside Place Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Charles Williams, Jr. appeals the decision of the Common Pleas Court, entered pursuant to a jury verdict, finding him guilty of murder in the death of George Jackson. On the afternoon of May 4, 1994, Charles Williams, Jr. went to his father's home on Darley Avenue in Cleveland to talk to a mechanic working on his car there. Others gathered including Frankie Hendricks, John Horton, and George Jackson, and they began drinking. Eventually, Charles Williams, Sr. and Hendricks left to go to the store. When they returned, they saw Charles Williams, Jr. raise a slab of concrete over his head and throw it on top of a body lying in the street and then kick the body. Charles Williams, Sr. immediately grabbed his son and told him to leave the area to avoid murder charges and Williams, Jr. then left with Hendricks. Charles Williams, Sr. then waited on the scene for an ambulance and police to arrive. Initially, Charles Williams, Sr. told police that when he came home, he found the body lying in the street. However, a week later he called police and told them his son had committed the crime. Based on this report, police arrested Charles Williams, Jr. on May 13, 1994 and charged him with murder. On August 4, 1994, when trial was to begin, Williams asked for a continuance until August 25, 1994, which the court granted. Then, on August 25, 1994, Williams signed a speedy trial waiver - 3 - until October 5, 1994 when he sought a referral to the court psychiatric clinic for an examination regarding his competency to stand trial, and the court granted the request. Pending that report, Williams moved to suppress all evidence and statements made incident to Williams's arrest. Thereafter, the court psychiatric clinic submitted its report containing an opinion of Williams's competency to stand trial; the parties stipulated to the admissibility of the report, and the trial court then finalized its order which found Williams competent to stand trial on June 19, 1995. At trial, the state presented testimony from deputy coroner Heather Raaf who explained that Jackson died from multiple blows to the head and neck and also presented testimony from forensic scientist Jeffrey Wagner who identified hair and blood samples found on a slab of concrete at the scene as matching the victim. In addition, Charles Williams, Sr. and Frankie Hendricks testified that they watched Charles Williams, Jr. throw a large rock on George Jackson as he lay in the street and then kick the body, and a neighbor, Earnest Mays, testified that he saw Charles Williams, Jr. lift a slab of concrete over his head and throw it to the ground, although he could not see where it landed. Williams testified in his own defense and explained that although he had been at his father's house on the day Jackson was killed, he took the bus to another part of town to meet up with some friends when his father and Hendricks left to buy food. - 4 - Williams also presented three alibi witnesses: Irma Henderson who testified that she saw him between 6:00 p.m. and 7:00 p.m. and again at 11:00 p.m. that evening, Richard Henderson who testified that he was with Williams between 6:00 p.m. and 8:30 p.m. and then again after 11:00 p.m on that night, and Williams's girlfriend, Allegra Pierce, who testified that she saw Williams between 8:30 p.m. and 9:00 p.m. when she handed him keys to her house. In rebuttal, the prosecution presented Cleveland Police Detective Diane Parkinson who testified that shortly before trial she interviewed the three alibi witnesses whose stories then differed from their testimony at trial. After deliberating on the matter, the jury convicted Charles Williams, Jr. of murder. He now appeals and assigns four errors for our review. I. The first assignment of error states: APPELLANT WAS DENIED HIS STATUTORY RIGHT TO SPEEDY TRIAL PURSUANT TO R.C. 2945.71 IN VIOLATION OF THE RIGHTS GUARANTEED HIM BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10, OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT DENIED COUNSEL'S MOTION FOR DISMISSAL. Williams contends the trial court erred in denying his motion to dismiss because the state violated his constitutional and statutory right to a speedy trial. - 5 - The state, on the other hand, argues that the trial court properly denied the motion to dismiss because the state did not violate his constitutional or statutory right to a speedy trial and any delays were occasioned by defense motions. The issue, then, for our consideration, is whether or not the state violated Williams's right to a speedy trial. In Ohio, R.C. 2945.71 defines speedy trial and requires, in pertinent part: (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. * * *. * * * (E) For purposes of computing time * * * each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. * * * In this case, Williams was held in jail, which required the state to bring him to trial within ninety days after his arrest. However, R.C. 2945.72 details statutory circumstances under which this time may be extended: The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: *** (E) Any period of delay necessitated by * * * motion, proceeding, or action made or instituted by the accused. - 6 - Therefore, as the Ohio Supreme Court recognized in State v. Bickerstaff (1984), 10 Ohio St.3d 62, 67: It is evident from a reading of the statute that a [defense motion] acts to toll the time in which a defendant must be brought to trial. * * * Therefore, the time that elapsed while the motions were pending is not included for purposes of R.C. 2945.71. In this case, the record reveals police arrested Williams on May 13, 1994, hence, the statutory time began to run on May 14, 1994. On August 4, 1994, the date originally set for trial, 83 days had elapsed. However, on that day, Williams moved for a continuance until August 25, 1994, when he signed a waiver of his speedy trial rights until October 5, 1994. Then, pursuant to a defense motion, the court referred Williams for psychiatric evaluation and thereafter determined Williams competent to stand trial on June 19, 1995. In accord with Bickerstaff, supra, since appellant sought these delays, this time is not included in calculating speedy trial time. Williams argues that the time recommenced when the court journalized its order finding him competent to stand trial on June 19, 1995, and therefore his conviction should be reversed as the court denied him his constitutional right to a speedy trial. However, our review of the record reveals that in addition to the time tolled due to continuance, waiver, and psychiatric evaluation, defense counsel also filed a motion to suppress but later withdrew that motion on the day of trial, August 2, 1995. - 7 - In accord with R.C. 2945.72(E), the time that elapsed during the pendency of the motion is not included for purposes of R.C. 2945.71. Therefore, because defense counsel did not withdraw the motion until the day of trial, the number of days which counted against the state totaled only 83 days. Accordingly, the state did not deny Williams his constitutional right to a speedy trial, and the first assignment of error is overruled. II. The second assignment of error states: MR. WILLIAMS' RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. Williams argues that the prosecutor improperly commented on the credibility of defense witnesses during final argument and prejudicially affected Williams's rights to a fair trial. He contends the prosecutor's admonition to the jury not to listen to defense "smoke screens" and statement that the defense witnesses spoke "garbage" unfairly removed the issue of Williams's alibi from the jury's consideration. The state, on the other hand, contends the prosecutor properly presented his final argument. The state further contends Williams did not object to these remarks, and that merely commenting on the evidence does not amount to plain error. - 8 - The issue for our resolution, then, is whether the comments of the prosecutor during final argument denied Williams a fair trial. In considering this assignment of error we note that defense counsel never objected to these comments at trial. "A claim of error in a criminal case cannot be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial." State v. Landrum (1990), 53 Ohio St.3d 107, 111. Therefore, we will review the statements under a plain error standard. To rise to the level of plain error, it must appear on the face of the record not only that the error was committed, but that except for the error, the result of the trial clearly would have been otherwise and that not to consider the error would result in a clear miscarriage of justice. State v. Underwood (1983), 3 Ohio St. 3d 12. With this standard in mind, we note that courts generally grant both sides latitude in closing argument. State v. Byrd (1987), 32 Ohio St.3d 79, 82; State v. Keenan (1993), 66 Ohio St.3d 402. However, the Ohio Supreme Court held in one case that a prosecutor's use of the terms "garbage" and "smoke screen" to be beyond the latitude allowed where the prosecutor intimated that defense counsel had suborned perjury. State v. Smith (1984), 14 Ohio St.3d 13. - 9 - However, since Smith, supra, the Ohio Supreme Court has emphasized that because prosecutors should be given latitude in closing arguments, the effect of any misconduct should be considered in light of the whole case. State v. Mauer (1984), 15 Ohio St.3d 239. Then, in State v. Rahman (1986), 23 Ohio St.3d 146, the court observed that attorneys, at times, venture outside the evidence in closing arguments, but concluded such errors do not always form the basis of reversal because: If every remark made by counsel outside of the testimony were grounds for reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced of counsel are occasionally carried away by this temptation. Rahman, supra at 154, quoting Dunlap v. United States (1897), 165 U.S. 486, 498. In this case, our review of the transcript reveals that both the prosecutor and the defense counsel argued in closing argument that a determination of the case rested on whose testimony the jury chose to believe. Both tried to emphasize the incredulity of the opponent's evidence. Williams challenges the following comments made by the prosecutor during closing argument: * * * Don't listen to smoke screens. Listen to the facts that came from this stand. We have heard over and over again that the defendant in this case had a .38. There is not evidence whatsoever that this victim was shot. We never heard people that testified that a gun went - 10 - off. Don't listen to smoke screens. Don't listen to smoking guns. * * * Williams also challenges the following remarks made during the state's final closing argument: * * * You know, how can one not get impassioned when you listen to the garbage that came out of the defense witnesses and their attorneys on cross-examination when you talk about this stuff? Again, I'm not going to apologize for being impassioned. I sat and listened to the same thing. * * * These specific comments challenged by Williams were isolated remarks in the state's closing argument, and did not rise to the level of Smith, supra, where the prosecutor intimated that defense counsel suborned perjury by manufacturing lies. Therefore, in accordance with Mauer and Rahman, supra, we cannot conclude that these statements prejudicially affected the substantial rights of the defendant in this instance. Therefore, the statements did not rise to the level of plain error, and the second assignment of error is overruled. III. The third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED IMPROPER REBUTTAL TESTIMONY OF DETECTIVE DIANE PARKINSON. Williams contends the trial court committed prejudicial error in permitting the rebuttal testimony of Detective Parkinson because the state improperly offered the testimony to discredit - 11 - alibi witnesses and not to refute evidence offered by the witnesses who testified. The state argues the trial court properly exercised its discretion in permitting the rebuttal testimony. The issue, then, for our consideration is whether the trial court abused its discretion in permitting Detective Parkinson to testify regarding the credibility of the alibi witnesses. Rebuttal evidence has been defined as "that which is given to explain, repel, counteract, or disprove facts given in evidence by the adverse party. It is that evidence which has become relevant or important only as an effect of some evidence introduced by the other side. * * * The scope of rebuttal testimony is limited by the evidence adduced by the opposing party." Nickey v. Brown (1982), 7 Ohio App.3d 32, 35 quoting 31 Corpus Juris Secundum 818, Evidence, Section 2. Thus, the purpose of the rebuttal portion of trial is to allow the state to refute evidence offered by the defense. State v. Moore (1973), 47 Ohio App.2d 181. Furthermore, the scope of a witness's rebuttal testimony is left to the discretion of the trial court. State v. Graven (1978), 54 Ohio St.2d 114; State v. Bayless (1976), 48 Ohio St.2d 73. Therefore, "An appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion." State v. Finnerty (1989), 45 Ohio St.3d 104, 107. - 12 - In this case, after the defense rested, the state presented rebuttal testimony from Cleveland Police Detective Diane Parkinson who testified that when she interviewed Williams's three alibi witnesses several days before trial, they made statements which differed from their testimony at trial. Specifically, Parkinson testified that Irma Henderson had told her Charles Williams appeared intoxicated on May 4, 1994 although Henderson testified that she did not know if her son and Williams were drinking that day. Parkinson further testified that Richard Henderson told her that he and Charles Williams got together on May 4th, 5th or 6th -- he was not sure which day -- to drink and smoke marijuana, although he testified that he had only been drinking with Williams and did not know whether Williams smoked marijuana. Parkinson also testified that Allegra Pierce told her she had given her keys to a man called Snake and later called to see if Williams got them, however, at trial Pierce testified that she had given her keys directly to Williams that night. This testimony by Parkinson tended to counteract or disprove facts presented by the alibi witnesses and became relevant as an effect of evidence presented by the defense. Accordingly, we conclude Parkinson's testimony constituted proper rebuttal, the trial court properly exercised its discretion in permitting the testimony, and the third assignment of error is overruled. - 13 - IV. The fourth assignment of error states: THE VERDICT FINDING APPELLANT GUILTY OF MURDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. William urges that the verdict is against the manifest weight of the evidence because he presented three witnesses to support his alibi, whereas the two eyewitnesses presented by the state admitted they had been drinking prior to the incident, and each had criminal records, thus, placing their credibility in question. The state contends the jury verdict is supported by the manifest weight of the evidence. The issue, then, for our consideration is whether the jury verdict is against the manifest weight of the evidence in this case. Generally, matters involving the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 330. However, in determining whether a verdict is against the manifest weight of the evidence on appeal, this court weighs the evidence. As explained by the court in State v. Martin (1983), 20 Ohio App.3d 172 at 175: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines - 14 - 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. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. In this case, the state presented testimony from a deputy coroner who explained that George Jackson died from multiple blunt impacts to the head and neck, which were consistent with being struck with a twenty-pound rock. Additionally, a forensic scientist testified that a rock recovered at the scene exhibited blood and facial hairs consistent with those of the victim, George Jackson. Additionally, the state presented three eyewitnesses who testified they saw Williams, Jr. raise a large rock over his head and throw it down on the ground. Williams, Sr. and Hendricks stated they saw Williams, Jr. throw the rock directly on George Jackson and stomp on the body. Neighbor Earnest Mays testified that he saw Williams, Jr. hold the slab of concrete over his head and throw it to the ground, but stated that from his perspective he could not see what the rock struck. Several police officers also gave testimony on behalf of the state. Williams testified on his own behalf that although he had been at his father's house earlier in the day, he left the area prior to the killing of George Jackson and he spent the rest of the evening with Richard Henderson in another part of town. Williams also presented three alibi witnesses -- Richard Henderson and his mother Irma Henderson, and Williams's - 15 - girlfriend Allegra Pierce -- each of whom testified that they had seen Williams at various times throughout the evening on which George Jackson died. After weighing all of the evidence in the record before us and considering the credibility of the witnesses, as we are required to do under Martin, supra, we cannot conclude that the jury lost its way in resolving conflicts in the evidence in this case. Accordingly, the conviction is not contrary to the manifest weight of the evidence and this assignment of error is overruled. Judgment affirmed. - 16 - 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. HARPER, P.J., and DYKE, 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, .