COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69628 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ANTHONY STARR : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 30, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CR-226619. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Anthony Starr, pro se Serial No. 206-752 P.O. Box 901 Leavittsburg, OH 44430 -2- DAVID T. MATIA, J.: Anthony Starr, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas in which the trial court denied defendant-appellant's motion for a new trial, or in the alternative, petition for post-conviction relief pursuant to R.C. 2953.21. Defendant-appellant assigns five errors for this court's review. Anthony Starr's, defendant-appellant's, appeal is not well taken. I. THE FACTS On September 30, 1988, Anthony Starr, defendant-appellant, was convicted in the Cuyahoga County Court of Common Pleas of attempted aggravated burglary, aggravated burglary, aggravated robbery, felonious assault and three counts of rape. Defendant-appellant's convictions arose out of the violent attack and rape of Eleanor LaRue in her home on October 2 and 3, 1987 as well as the attempted aggravated burglary at the residence of Kimberly Walford on December 12, 1987. Significant evidence against Anthony Starr, defendant- appellant, included a piece of rope found in defendant-appellant's automobile trunk which matched a piece of rope found at the home of Eleanor LaRue, a leather motorcycle jacket with numerous metal zippers, defendant-appellant's height and weight matched Eleanor LaRue's estimation and defendant-appellant was found to be in possession of a knife with human blood on the blade. In addition, defendant-appellant could not account for his whereabouts during the time of the attack on Eleanor LaRue. -3- Following his conviction, Anthony Starr, defendant-appellant, filed a timely notice of appeal to this court. On April 5, 1990, the Court of Appeals affirmed defendant-appellant's convictions. State v. Starr (April 5, 1990), Cuyahoga App. No. 56819, unreported. On June 4, 1990, defendant-appellant filed a memorandum in support of jurisdiction with the Ohio Supreme Court. On September 26, 1990, the Ohio Supreme Court denied defendant- appellant's appeal. Anthony Starr, defendant-appellant, then filed the following motions in the Cuyahoga County Court of Common Pleas and Court of Appeals: 1) Motion for a New Trial filed August 7, 1990, denied April 18, 1991; 2) Petition for Writ of Mandamus filed April 4, 1991, dismissed May 21, 1991; 3) Motion in Application for Delayed Reconsideration of the Direct Appeal filed January 4, 1993, denied November 3, 1993; 4) Motion for Reversal of Judgment filed March 9, 1993, denied June 16, 1993; and 5) Motion for a New Trial, or in the alternative, Petition for Post-Conviction Relief filed on February 28, 1995, denied September 1, 1995. On October 2, 1995, Anthony Starr, defendant-appellant, filed a timely notice of appeal from the September 1, 1995 judgment of the trial court. -4- II. FIRST ASSIGNMENT OF ERROR Anthony Starr's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR NEW TRIAL (WITH ALTERNATIVE POST- CONVICTION RELIEF) WHERE THE MISCONDUCT OF THE PROSECUTING ATTORNEY MATERIALLY AND PREJUDICIALLY INTERFERED WITH APPELLANT'S FUNDAMENTAL RIGHT TO A FAIR AND IMPARTIAL TRIAL AS MANDATED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 5 AND 6 OF THE OHIO CONSTITUTION. A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT. Defendant-appellant maintains that the trial court improperly denied his motion for a new trial based upon prosecutorial misconduct. Specifically, defendant-appellant contends that the prosecuting attorney concealed evidence, failed to provide complete discovery and elicited perjured testimony from one of the witnesses. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT. In general terms, the conduct of a prosecuting attorney during trial cannot be made a basis for error on appeal unless the conduct deprives the defendant of a fair trial. State v. Mauer (1984), 15 Ohio St.3d 239, 266; State v. Vrana (1988), 47 Ohio App.3d 145. The effect of alleged prosecutorial misconduct must be considered in light of the whole case. Mikula v. Balogh (1965), 9 Ohio App.2d 250, 258. -5- In State v. Mann (1993), 93 Ohio App.3d 301, this court citing State v. Hill (1977), 52 Ohio App.2d 393, set forth four elements to be considered in determining whether the prosecutor's statements amount to misconduct: (1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant. Another factor to be considered in determining whether remarks or actions of the prosecuting attorney constitute misconduct is whether the remarks or actions prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. C. STANDARD OF REVIEW FOR MOTION FOR NEW TRIAL. Crim.R. 33(A), which sets forth the grounds upon which a motion for a new trial may be granted, states: (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; (3) Accident or surprise which ordinary prudence could not have guarded against; (4) That the verdict is not sustained by sufficient evidence or is contrary to law. If the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and -6- shall pass sentence on such verdict or finding as modified; (5) Error of law occurring at the trial; (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses. A motion for a new trial pursuant to Crim.R. 33 is left to the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. State v. Shepard (1983), 13 Ohio App.3d 117. As stated by the Ohio Supreme Court in Blakemore v. Blakemore (1983), 5 Ohio St.3d 217: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. -7- D. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL. Notwithstanding defendant-appellant's contention, a review of the record fails to demonstrate or substantiate any occurrence of prosecutorial misconduct. As the trial court correctly determined, defendant-appellant failed to provide the trial court with any documentary evidence to show that the prosecution's witnesses perjured themselves in any way. In addition, defendant-appellant's allegation that full discovery was not provided is unfounded and unsupported by the record. Accordingly, the trial court did not err in denying defendant- appellant's motion for new trial, or in the alternative, petition for post-conviction relief since defendant-appellant did not meet any of the grounds for a new trial set forth in Crim.R. 33(A). Defendant-appellant's first assignment of error is not well taken. III. SECOND AND THIRD ASSIGNMENTS OF ERR Anthony Starr's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S NEW TRIAL MOTION OR ALTERNATIVE POST CONVICTION RELIEF ON THE GROUNDS OF RES JUDICATA WHERE THE PROFESSIONAL FAILURES OF TRIAL COUNSEL COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL DUE TO A SILENT RECORD, INCLUDING BUT NOT LIMITED TO FRAUD OR DECEIT ON THE PART OF TRIAL COUNSEL. Anthony Starr's, defendant-appellant's, third assignment of error states: APPELLANT STARR'S RIGHT PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE -8- UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WERE VIOLATED BY DEFENSE COUNSEL'S FAILURE TO SEEK RECUSAL OF THE JUDGE. THEREFORE THE TRIAL COURT ERRED IN NOT GRANTING RELIEF OR A HEARING ON THIS MATTER. A. THE ISSUE RAISED: INEFFECTIVE ASSISTANCE OF COUNSEL. Having a common basis in both law and fact, this court shall consider defendant-appellant's second and third assignments of error simultaneously. Defendant-appellant argues, through his second and third assignments of error, that he failed to receive effective assistance of counsel. Specifically, defendant-appellant maintains that his trial counsel failed to effectively impeach the allegedly untruthful testimony of the victim, Ms. Eleanor LaRue, failed to seek recusal of the trial judge and generally failed to adequately represent defendant-appellant at trial. Defendant-appellant's second and third assignments of error are not well taken. B. STANDARD OF REVIEW. Issues which were raised or which could have been raised and fully litigated before a judgment of conviction or on direct appeal without resort to evidence dehors the record are barred from consideration in post-conviction proceedings by the doctrine of res judicata. State v. Cole (1982), 2 Ohio St.3d 112; State v. Perry (1967), 10 Ohio St.2d 175. Issues properly before a court on a petition for post- conviction relief are issues which could not have been raised on -9- direct appeal due to the fact that the evidence supporting such issues is dehors the record. State v. Milanovich (1975), 42 Ohio St.2d; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. C. RES JUDICATA. A review of the record before this court demonstrates clearly that defendant-appellant's claims of ineffective assistance of counsel have been raised and litigated twice before the common pleas court, twice before this court and once before the Ohio Supreme Court. Accordingly, this court will not delve into those claims once more as they are barred by the doctrine of res judicata. State v. Perry, supra; State v. Phillips (1993), 88 Ohio App.3d 409. Even if defendant-appellant's claims for ineffective assistance of counsel were not barred by the doctrine of res judicata, there is no evidence in the record to demonstrate that defense counsel's performance was seriously flawed and deficient and that the result of defendant-appellant's trial would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. In addition, defendant-appellant's claim that the trial court was somehow prejudiced against him, is meritless and unsupported by the record. Defendant-appellant's second and third assignments of error are not well taken. -10- IV. FOURTH ASSIGNMENT OF ERROR Anthony Starr's, defendant-appellant's, fourth assignment of error states: THE TRIAL COURT ERRED IN DENYING RELIEF AND FALSELY STATING THAT APPELLANT FAILED TO PROVIDE THE COURT ANY DOCUMENTARY EVIDENCE WHICH SHOWS THAT THE PROSECUTION'S WITNESSES PERJURED THEMSELVES ON THE STAND. A. THE ISSUE RAISED: PERJURY. Defendant-appellant argues, through his fourth assignment of error, that the trial court was incorrect in finding that defendant-appellant failed to provide documentary evidence regarding the alleged perjured testimony of Ms. Eleanor LaRue. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW. As previously stated by this court in its discussion regarding defendant-appellant's first assignment of error, a motion for a new trial pursuant to Crim.R. 33 is left to the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. State v. Schiebel, suprpa. C. THE TRIAL COURT DID NOT ERR. In the case sub judice, a review of the record from the trial court fails to support defendant-appellant's argument. Defendant-appellant claims that Ms. Eleanor LaRue perjured herself by failing to testify regarding her initial suspicion of -11- her ex-husband's potential involvement in the assault, suspicion Ms. LaRue later determined to be unfounded. However, a review of Ms. LaRue's testimony clearly shows that her earlier, unconfirmed suspicions as well as her conclusions were presented to the jury for their consideration. Accordingly, defendant-appellant's claim regarding Ms. LaRue's testimony is meritless and the trial court properly denied relief on these grounds. Defendant-appellant's fourth assignment of error is not well taken. V. FIFTH ASSIGNMENT OF ERROR Anthony Starr's, defendant-appellant's, fifth and final assignment of error states: APPELLANT STARR WAS DENIED HIS RIGHT TO LAWFUL REDRESS FOR CONSTITUTIONAL VIOLATIONS WHEN HIS ISSUES WERE NOT FREE FROM CORRUPT PRACTICES IN VIOLATION OF ART. I, 16 OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. A. THE ISSUE RAISED: NEW TRIAL. Defendant-appellant's fifth and final assignment of error is an amalgamation of the claims previously raised by defendant- appellant in the first four assignments of error which this court has addressed and determined to be without merit. Accordingly, this court will not now address defendant-appellant's fifth and final assignment of error as it is moot pursuant to App.R. 12(A)(1)(c). Defendant-appellant's fifth assignment of error is not well taken. -12- Judgment of the trial court is affirmed. -13- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA PRESIDING 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 .