COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69966 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION GEORGE CUMMINGS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-242988. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John R. Kosko Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Albert A. Giuliani, Esq. Darrel D. Tybursky, Esq. 410 Leader Building Cleveland, Ohio 44114 SWEENEY, JAMES D., P.J.: Defendant-appellant George Cummings appeals his convictions on count one of the indictment for murder, in violation of R.C. 2903.02, with a firearm specification, and counts three and four for attempted murder, in violation of R.C. 2903.02 and R.C. 2923.02, each with firearm specifications. A nolle prosequi was entered as to count two of the indictment. The appellant was sentenced to a term of incarceration of fifteen years to life imprisonment for murder, with the mandatory three year incarceration for the firearm specification to run prior to and consecutive with the life sentence. On counts three and four, the attempted murders, the appellant received a sentence, for each conviction, of ten to twenty-five years incarceration, with ten years actual incarceration. In addition, the court imposed three years for each firearm specification to be served prior to and consecutively with the convictions in counts three and four. The sentences for counts three and four are to be served concurrently with each other, but consecutively to count one. Early in the morning hours of Sunday, June 18, 1989, at the Playhouse East Center, in Cleveland, Ohio, Paul Brown aka Michael Dehaney was shot and killed by the appellant. Holly Watson and the decedent had been involved in a relationship for approximately six to seven months at the time of his death. On the evening of June 17, 1989, Ms. Watson, Ronna Mills-Taylor and the decedent attended a reggae party at the Playhouse East Center. Ms. Watson knew the - 3 - appellant, who she knew only by the name of Killer, as an acquaintance of her sister. The appellant was in attendance at the reggae party. Ms. Watson was apprehensive because she believed there was tension between the two men over some of the decedent's clothing allegedly stolen by Ms. Watson's sister and given or sold to the appellant. When the decision was made to leave the party, Ms. Watson and Ms. Mill-Taylor left the reggae party and telephoned for a cab. They returned to the party center but later went outside the party center to check for the taxi. As they re-entered the party, Ms. Watson heard shots. People began to stream out of the building and they were "looking at her." She observed the appellant and the woman he was with, Gwen, leave the building, enter a vehicle, and drive away. That was the last time she saw the appellant. When she entered the building she found the decedent laying in a pool of blood. She was extremely upset and went outside to sit down. When the ambulance arrived she was not sure whether or not the victim was still alive. She and Ms. Mills-Taylor were driven to the hospital by Ms. Mills-Taylor's nephew. Ms. Mills-Taylor was unable to identify the appellant as the man she observed leaving the party center, but she observed Gwen leaving the party shortly after the man she observed with the gun. James Woodson attended the reggae party with his wife in celebration of Father's Day. As he was sitting down and listening to the music on the left side of the dance floor, he was shot in - 4 - the back. He fell to the floor, and his wife covered him with her body. As a result of the shot, his vena cavae, the artery to the heart, was severed in half, his lungs collapsed, and his liver and kidney were hit by the shot. He remained in St. Luke's Hospital for eleven days and upon discharge was bedridden for three months. The subsequent recuperation took a full year. Mr. Woodson was unable to see who shot him. Sabrina Nash was also in attendance at the party center that night. At the time she was shot she was standing and talking to Paul Brown. She did not see who shot Mr. Brown as he jumped in front of her when the shooting began. Ms. Nash suffered a graze from the bullet on her stomach, but she was not detained in the hospital. Sarienya Thomas was called to the stand as the court's witness and each party was permitted to cross-examine her. Ms. Thomas was present at the Playhouse East Party Center the night of June 18, 1989, when the shooting occurred. Ms. Thomas did not observe anyone fire the shots; did not give a statement to the police the next day; and has never worked for any detectives in the Carribean Task Force of the Cleveland Police Department. The statement purportedly given by Ms. Thomas was read to her, and, although she identified her signature, she maintained that she never gave such a statement. The night of the shooting she signed a paper allowing her to leave the scene because her motor vehicle had been towed. - 5 - The statement purportedly given by Ms. Thomas identified the appellant as the man who shot Paul Brown. The statement also indicates that the appellant left the party after the shooting with Gwen and two other people. In the statement there is an approximate birthdate given for the appellant and an indication that there was some dispute as to the ownership of clothing. Detective Tim Patton, who is assigned to the Carribean Task Force, testified that he did take the statement of Sabrina Nash on June 19, 1989. Ms. Thomas was known to the officer because she was "a source of information" to the task force. The entire statement was read for the record, and Officer Patton testified that it was the statement given by Ms. Nash and signed in his presence. Thomas Alexander, the security guard at the Playhouse East Party Center, testified that he was outside at the time the shots were fired. Upon being informed by a fleeing patron that someone was "shooting up the place," he called 911. The police arrived and began their investigation. Cleveland Police Officers Douglas Melton, Jon Qualey, Daniel Rowley, Ronald Richley, and Robert Moore each testified to their role in the investigation of the appellant's crimes. Dr. Robert Challener of the Cuyahoga County Coroner's Office testified regarding the autopsy which was performed on Paul Brown. Sharon Rosenberg, also of the coroner's office, testified as to the trace evidence testing she performed in this case. The appellant sets forth eight assignments of error. - 6 - The first assignment of error: I THE TRIAL COURT ERRED BY CALLING AS A COURT'S WITNESS, SARIENYA THOMAS AND BY ALLOWING THE STATE AND THEIR WITNESS TO READ HER ALLEGED PRIOR STATEMENT IN ITS ENTIRETY NUMEROUS TIMES. The appellant argues that the trial court erred in permitting the appellee to impeach its own witness with a prior inconsistent statement. The appellant states that the appellee was not surprised by Sarienya Thomas' testimony, and should not have used her prior statement to impeach her testimony. The appellant asserts that "the State offered the surreptitious alternative of having the court call this witness as it's own." (Appellee's brief p. 10.) The appellant argues that the State's motivation was to introduce the prior statement to the jury knowing that it was not otherwise admissible. The appellant asserts that the repeated use of the inadmissable prior statement was highly prejudicial and that the court's limiting instruction was insufficient to rectify this prejudice. Evid.R. 614 provides that the trial court may, on its own motion or at the suggestion of a party, call witnesses and allow each party to cross-examine those witnesses. The State need not demonstrate surprise in order to cross-examine those witnesses. State v. Apanovitch (1987), 33 Ohio St.3d 19, 22, citing to State v. Dacons (1982), 5 Ohio App.3d 112. The Apanovitch court narrowed its inquiry to determine whether or not the trial court had abused - 7 - its discretion, and found that the court had not. A trial court may call, as its witness, a witness whom the State requests the trial court to call, and the State may impeach said witness with prior inconsistent statements even though the State cannot demonstrate surprise. Dacons, supra,. It is briefly worthy to note that in Dacons, supra, the defendant raised the same arguments raised by the appellant herein, and those arguments were rejected so long as a limiting instruction, as is the case here, was given to the jury. See also State v. Rhym (July 27, 1995), Cuyahoga App. No. 67750, unreported. But cf. State v. Combs (Dec. 4, 1991), Summit App. No. 15025, unreported. It is clear in the case sub judice that Ms. Thomas was at the crime scene when the murder and the attempted murders took place. She gave a statement to the police, and then claimed she never gave the statement. Her testimony was relevant to the case and the court did not act unreasonably or abuse its discretion in calling Ms. Thomas to the stand. The appellant's first assignment of error is overruled. The second assignment of error: II THE TRIAL COURT COMMITTED PLAIN ERROR, DENYING THE APPELLANT HIS RIGHT NOT TESTIFY (sic) AND HIS RIGHT THAT HIS SILENCE SHALL NOT BE CONVERTED INTO EVIDENCE AGAINST HIM, WHERE THE COURT INSTRUCTED THE JURY THAT THERE WAS EVIDENCE THAT HE FLED THE VICINTY (sic) OF THE CRIME AND UNLESS THIS WAS SATISFACTORILY EXPLAINED BY THE APPELLANT IT TENDED TO SHOW HIS CONSCIOUSNESS OF GUILT. - 8 - In this assignment of error the appellant argues that the court erred when it instructed the jury on the issue of flight. The appellant asserts that the court's instruction unconstitutionally compromised the appellant's right to remain silent and to not have that silence used against him. The appellant contends that, because it was not objected to at the time of trial, the jury instruction constituted plain error. The court gave the following instruction: Now, flight. In this case there is evidence tending to indicate that the defendant fled from the vicinity of the alleged crime. In this case you are instructed that flight in and of itself does not raise a presumption of guilt. However, unless satisfactorily explained, it tends to show consciousness of guilt or a guilty connection with the alleged crime. If, therefore, you find that the defendant did flee from the vicinity of the alleged crime and this conduct has not been satisfactorily explained you may consider this circumstance in the case in determining the guilt or innocence of the defendant. Upon you alone rests the decision to determine what weight, if any, you place upon the evidence you find, if any which bears upon this issue. (T. 650-651). This court has previously reviewed this jury instruction and found that such an instruction does not constitute plain error. State v. Teasley (August 17, 1995), Cuyahoga App. No. 67819, unreported. See also State v. Gee (June 2, 1994), Cuyahoga App. Nos. 64410, 64411, unreported. Both Teasley, supra, and Gee, supra, cite with approval a review of this jury instruction in State v. Wilson (1988), 47 Ohio App.3d 136. - 9 - The appellant's second assignment of error is not well taken. The third assignment of error: III THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING THE INTRODUCTION OF AND REPEATED REFERENCE TO THE APPELLANT AS "KILLER." The appellant asserts that the trial court erred in permitting the repeated reference to the appellant by his nickname "Killer" because it resulted in the prejudicial and unconstitutional characterization of the appellant as a killer. It is not contested that the use of the appellant's nickname was not objected to at trial and the appellant uses the plain error doctrine set forth in Crim.R. 52(B) to argue that these references were more prejudicial than probative and should have been excluded. Notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91. The appellant has not demonstrated that absent this reference, he would not have been convicted. In fact, two of the State's witnesses, Holly Watson and Ronna Mills-Taylor, testified that they only knew the appellant by the name Killer. (T. 85-86, 219, 234.) This use of the appellant's nickname was primarily for the purpose of identification and worked no substantial prejudice upon the appellant. The appellant's third assignment of error is overruled. The fourth assignment of error: - 10 - IV PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS ABRIDGED THE APPELLANT'S RIGHT TO A FAIR TRIAL. The appellant argues that the appellant's conviction should be reversed because the prosecutor used improper and prejudicial tactics during closing arguments. Specifically, the appellant states that the prosecutor argued that Ms. Mills-Taylor identified the appellant as he fled the scene; that the prosecutor referred to Ms. Thomas as a liar; and that the prosecutor expressed his belief in the appellant's guilt. The Supreme Court has held that the conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the defendant of a fair trial. In State v. Keenan (1992), 66 Ohio St.3d 402 citing to State v. Apanovitch (1987), 33 Ohio St.3d 19. The also court noted that the effects of any prosecutorial misconduct must be considered in the context of the entire trial, "one factor relevant to the due-process analysis is whether the misconduct was an isolated incident in an otherwise properly tried case." Keenan, supra, 410. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper, and if so, whether they prejudicially affected a substantial right of the defendant. State v. Johnson (May 25, 1995), Cuyahoga App. No. 67286. In deciding whether or not the defendant was denied a fair trial, the court must determine whether the fact finder would have found the defendant guilty absent the - 11 - prosecutor's remarks. State v. Smith (1984), 14 Ohio St.3d 13; State v. Maurer (1984), 15 Ohio St.3d 239. In the case sub judice, the prosecutor clearly stated in his closing that Ms. Mills-Taylor did not identify the appellant as the man who left the scene with a gun (T. 639-640). The State argues that its characterization of Ms. Thomas as a liar and the comment regarding the appellant running from the crime because "he knew he committed this crime and he knew he wanted to get as far away from Cleveland, Ohio as he could" (T. 589) were both premised on facts in the record. These comments, assuming arguendo that they can be characterized as error, were not so egregious as to deny the appellant a fair trial. The appellant's fourth assignment of error is overruled. The fifth assignment of error: V THE TRIAL COURT ERRED BY PERMITTING A STATE'S WITNESS TO TESTIFY THAT THE MAN SHE SAW LEAVING THE PARTY WITH A GUN IN HIS HAND WAS THE APPELLANT WHERE SHE HAD EARLIER TESTIFIED THAT SHE COULD NOT IDENTIFY THE MAN WITH THE GUN. The appellant states that the court erred in permitting Ms. Mills-Taylor to give conflicting testimony. The State contends that the appellant has mischaracterized the witness' testimony. Ms. Mills-Taylor testified that she knew someone by the name of Killer and that she didn't actually meet him, but they were at a party, and that she still doesn't know him (T. 219). When asked if she saw the appellant on the evening of the shootings she answered - 12 - "I think so." (T. 219.) After the shots were fired, Ms. Mills- Taylor and Ms. Watson waited outside for the shots to stop. They saw people running. Ms. Mills-Taylor stated "I saw a guy come out with a gun in his hand." (T. 222.) She could not say whether she had ever seen this man before because it was dark. She could not identify the appellant as the man she saw. She did testify that the man she saw was of medium height, black, with kind of short hair and with a hat. She described the gun as "kind of black and looking like a machine gun or a short machine gun." (T. 223.) The man went across the street and entered a car. Ms. Mills-Taylor testified that a few people at the party knew the man, and that she thought the man "went with" a woman named Gwen. When asked if she saw Gwen that night, the witness answered "I think so" and when asked if she observed Gwen leave with the man who was holding the gun she answered that Gwen was shortly behind him. (T. 224.) Ms. Mills-Taylor testified that she saw Gwen that night inside the party center; and that she saw Gwen leave the party center after the shooting just after the man with the gun. She does not know where Gwen went after she left. (T. 229.) The prosecutor asked Ms. Mills-Taylor if she ever saw the man with the gun again. She responded she had seen a photograph of the man in an article in The Plain Dealer. When asked if she knew that individual's name, the witness responded in the negative. (T. 234.) No prejudice accrued to the appellant as a result of the testimony of Ms. Mills-Taylor. Nowhere in the transcript does Ms. - 13 - Mill-Taylor identify the man with the gun as the appellant, nor is the man in the newspaper article identified as the appellant. The court properly permitted the jury to judge the credibility of the witness. The fifth assignment of error is overruled. The appellant's sixth assignment of error: VI THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTION TO ELICIT TESTIMONY REFERRING TO NON-TESTIFYING WITNESSES WHO ALLEGEDLY MADE STATEMENTS AT THE TIME OF THE SHOOTING. The appellant contends that appellant was prejudiced when the State elicited testimony from police officers concerning non- testifying eyewitnesses. The appellant cites to specific transcript pages, and an analysis of each section reveals no prejudice to the appellant. At page 455, Detective Robert Moore testified that four people were interviewed at the Homicide Unit and that formal written statements were taken. No inference was made as to the substance of the interviews nor the content of the written statements. The transcript reveals that the appellant objected to the testimony of Detective Moore on the basis that the State was attempting to create the impression that there were unavailable witnesses who, if found, would identify the appellant as the perpetrator. The court noted, out of the presence of the jury, that the objections had been sustained, and asked if the appellant's counsel wanted an instruction to be given to the jury. - 14 - Counsel agreed and requested that an instruction be given that the evidence is limited to the testimony from the witnesses who actually appear and testify. The court asked counsel to draft such an instruction (T. 473-477). In pages 477-479, Detective Moore testified that the police department has been searching for witnesses in this case since April 11, 1995; and that neither Donovan Ellis nor Sharon Robinson have been located. With respect to Sarienya Thomas, Detective Moore testified that she had been located, but that she had disappeared. He stated that the police, and he personally, were currently searching for Ms. Thomas. Detective Moore testified that Ms. Thomas appeared in the prosecutor's office and received a subpoena, but that she subsequently disappeared. Once more, the testimony reveals no comment or inference regarding the observations of these witnesses or the contents of their statements to the police. No prejudice to the appellant resulted from this testimony. In his testimony, Detective Moore gave a rendition of what he believed, or was informed by non-testifying witnesses, had occurred at the time of the crime (T. 452, 493-494). The court specifically instructed the jury that this testimony had been stricken and that they were to disregard it (T. 560-561). Detective Jon Qualey testified that the photo array was shown to Sharon Robinson and to Donovan Ellis. When the State asked whose photograph was identified by those individuals, the objection - 15 - by the counsel for the appellant was sustained. (T. 258-260.) The officer testified that he interviewed Holly Watson, James Woodson, Sharon Robinson, Donovan Ellis, Michael Bates and Godfrey Anderson in connection with this crime. (T. 270.) No information was elicited regarding the content of these interviews. Although there was some improper testimony given by Detective Moore, the trial court properly instructed the jury to disregard the testimony. The other specific portions of the transcript cited by the appellant do not reveal any improper testimony. The appellant's sixth assignment of error is overruled. The seventh assignment of error: VII THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant asserts that the verdict was against the manifest weight of the evidence because Ms. Watson's testimony contained inconsistencies which question her identification of the appellant. The Supreme court set forth the test for appellate review of manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259,273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely - 16 - (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trial of fact to determine. Jenks, supra. The appellant was convicted of both murder and attempted murder. The legislature has determined that no person shall purposely cause the death of another, R.C. 2903.02, and has defined attempt by stating that no person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct, which, if successful, would constitute or result in the offense. R.C. 2923.02. Here, witness Holly Watson testified that she was present at the reggae party; that she observed the appellant at the party; that she was outside when the shots occurred; and that she observed the appellant flee the scene immediately after the shots were fired with a semi-automatic weapon in his hand. Based upon this evidence, a jury could reasonably conclude that all the elements of the offenses have been proven beyond a reasonable doubt. Although there were some inconsistencies in the testimony of various witnesses, the credibility of the witnesses must be determined by the trier of fact. The appellant's seventh assignment of error is overruled. The eighth assignment of error: - 17 - VIII THE CONVICTION SHOULD BE REVERSED BECAUSE THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. The appellant asserts that he was rendered ineffective assistance of counsel by counsel's failure to object to the use of the appellant's nickname Killer and by counsel's failure to object to the jury instruction regarding flight. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.3d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. In the second assignment of error this court reviewed the jury instruction regarding flight and in the third assignment of error this court reviewed the use of the appellant's nickname. In the - 18 - analysis of each of these assignments of error it has been determined that, although no objections were raised, no plain error was committed under Crim.R. 52. Where no error has been committed, no prejudice has accrued to the appellant, and it cannot be found that counsel was ineffective. The appellant's eight assignment of error is overruled. Judgment affirmed. - 19 - 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. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .