COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69932 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION EDDIE E. SMITH : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-319358 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN 4403 St. Clair Avenue Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Eddie Smith appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of two alternative counts of Aggravated Murder including capital specifications, Kidnapping, and Aggravated Robbery, in connection with the shooting death of Ardus Woods on January 21, 1995 in the rear lot of 9221 Holton Avenue in the City of Cleveland. According to the testimony of Andrew Perry at trial, around 7:00 p.m. on the evening of January 21, 1995, Ardus Woods, known as Pudge, called Perry and arranged to meet him at the corner of East 59th and Francis Avenue in Cleveland. Woods arrived, and Perry and Ozella Burrage, known as Princess, who is also the sister of appellant, got into Pudge's red Geo Tracker and they later picked up Thomas Creer, known as Old Dog. As they drove, Perry accused Pudge of breaking into the home where he, Ozella, and his sister, Andrea Robinson lived and putting a gun to their heads and robbing them of $1700. Pudge denied any involvement but Perry drove to several persons' homes, none of whom identified Woods. Perry then directed them to an automobile garage on Bessemer Avenue where they joined Jarrett Waite known as Pauley, Jerome Benson known as Bear, and the appellant, Eddie Smith. There they all smoked blunts, described as hollowed-out cigars, repacked with marijuana. The group then eventually left the Bessemer - 3 - garage and drove to Waite's home on Reno Avenue near East 93rd Street. Once inside the home, Waite struck Woods on the left side of his knee with a metal pole and pointed a gun at him demanding to know what he had done with the money and suggesting that he should be killed. Also, appellant pulled out a .44 caliber revolver and also stated that Woods should be killed. Woods was crying and denied the robbery. Waite then tied his hands with telephone wire and Benson gagged and taped his mouth. The victim attempted to escape by jumping out the window breaking the glass in the effort, but Ozella and Waite pulled him back into the house. Appellant then, according to Creer, stated, "You still gonna die." Waite next put a coat on Woods zipping it over his arms and a black skully hat over his head and put him in the back of a van. Princess drove the van, following Waite who drove the Tracker, abandoned it, and then joined Ozella, Creer, Benson, Perry, appellant and Woods in the van. Waite then asked, "Who gonna shoot him?" and appellant taking Waite's .380 semi- automatic, stated, "I do it." Putting the gun to Woods' head, Waite said, "not here;" appellant then told Woods, "You still gonna die." When the van stopped, Waite took Woods out of the van, helped appellant cock the gun and then got back into the van. Creer further testified he heard three shots, saw appellant - 4 - return to the van, and heard him respond to questions that he shot Woods three times in the chest. As Princess started to drive away, the victim jumped up and began to run. Appellant then gave Benson his .44 caliber Magnum revolver and Benson left the van and chased Woods on foot with Princess following in the van. Benson chased Woods into the rear lot of the Prayer Temple Baptist Church located at 9221 Holton Avenue, adjacent to an abandoned school building. Creer testified he heard Woods say, "No, no," and then heard two shots. Benson got back in the van, and in response to appellant's question stated, "Yeah, I got him, two to the head like we always do." The coroner, Elizabeth Balraj, testified that Woods sustained a gunshot wound to the forehead which exited on the right side of his head, and another to the left cheek of the face with the pellet recovered from the brain. The stippling around these wounds indicated the weapon had been fired from one and one-half to three feet from the head; the decedent also sustained a third gunshot wound to the front of his right chest, which pellet the coroner recovered from his shoulder, and a fourth gunshot wound to the left forearm. Booker T. Wade, who lived in a mobil home in the rear of the Prayer Temple Baptist Church, testified that he had heard a gunshot then saw a male with a gun chasing Woods, and then he heard two more gunshots. Wade met Patrolman Zenar Delk of the - 5 - Cleveland Police Department who responded to the scene and directed the officer to the location of the shooting. EMS transported Woods, who was still alive, to the hospital, but he later expired. On January 25, 1995, a Crimestoppers tip received by the Parma Heights Police Department and relayed to Detective Robert Matuszney of the Cleveland Police Department Homicide Unit, caused him to go to Waite's home located at 9317 Reno where he arrested Waite and eventually made the subsequent arrests of Ozella Smith, Andrew Perry, Jerome Benson, Thomas Creer, and the appellant. The grand jury returned four indictments against appellant and at trial, after presentation of the state's case, the defense rested. The jury returned verdicts finding Smith guilty of two counts of Aggravated Murder, Kidnapping, and Aggravated Robbery; following the penalty phase of the trial the jury recommended a sentence of life imprisonment with no parole until Smith served thirty full years of imprisonment. At sentencing, the court merged the alternative counts of Aggravated Murder and imposed the sentence of life imprisonment as recommended, with consecutive terms of ten to twenty-five years on each of the counts of Kidnapping and Aggravated Robbery together with a three-year gun penalty. Smith now appeals his convictions and raises two assignments of error: - 6 - The first assignment of error states: I. THE TRIAL COURT ERRED BY ALLOWING THE STATE TO USE ORAL STATEMENTS MADE BY THE APPELLANT THAT WERE NOT PROVIDED TO DEFENSE COUNSEL IN A TIMELY MANNER AS REQUIRED BY CRIMINAL RULE 16. Appellant alleges the trial court erred in permitting the state to use an oral statement Smith gave to Detectives Kunz and Matuszney on January 31, 1995 denying his involvement in the murder because the state failed to disclose it to the defense during discovery. The State urges that because it never used the statement at trial, no error occurred. The issue for consideration is whether or not the trial court erred in resolving the discovery dispute arising out of the prosecutor's belated discovery of the appellant's oral statement. The transcript reflects that on the morning of June 6, 1995, the prosecutor discovered the existence of appellant's oral statement denying involvement in the death of Ardus Woods and brought the matter to the attention of the court and provided defense counsel a copy of the page from the police report which documented the oral statement as summarized in writing by the detectives. Defense counsel, after stating that the report changed the potential of having Smith testify, asked for a mistrial. The trial court offered to give defense counsel time to evaluate - 7 - trial strategy and then precluded the State from using the appellant's oral statement in the State's case in chief, but never actually ruled whether, if appellant had testified, the court would have permitted the statement to have been used by the State on cross-examination. Smith never testified in the case. Since the State never used the statement at trial, we find no merit to this assignment of error. Generally, the granting or denying of a mistrial under Crim.R. 33 rests within the sound discretion of the trial court. See State v. Williams (1975), 43 Ohio St.2d 88. In State v. Franklin (1991), 62 Ohio St.3d 118, the court stated at 127, "Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible. Illinois v. Somerville (1973), 410 U.S. 458, 462-463 ***; Arizona v. Washington (1978), 434 U.S. 497, 505-506 ***." In this case, defense counsel never articulated how the ends of justice required a mistrial nor demonstrated how a fair trial was no longer possible, but only vaguely suggested witness questioning may have been different. Thus, the record does not demonstrate that the trial court abused its discretion in not granting a mistrial and this assignment of error is overruled. The second assignment of error states: II. - 8 - THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE UNFAIRLY PREJUDICIAL OTHER ACTS TESTIMONY IN VIOLATION OF OHIO RULE OF EVIDENCE 404(B). Smith contends the trial court erred in permitting Perry to testify that Benson said he shot Woods twice in the head, "*** like we always do." Smith alleges this statement constitutes impermissible other act testimony and prejudiced the defense. The State argues the trial court properly allowed the statement into evidence because Smith failed to timely object to its admission at the time Benson testified. The State further maintains that even if the court erred in admitting it into evidence, such error is harmless because Smith has not demonstrated the verdict would have been different if the statement had not been admitted. The issue, then, for our review is whether the trial court erred in allowing Perry's testimony about Benson's statement into evidence. The record reflects the following during the direct exami- nation of Andrew Perry who testified as a witness for the state. (Tr. 914.) A. ***. Bear was like, give me the fo-fo. Q. What's fo-fo stand for? A. The .44 Magnum. He grabbed it and ran. Q. Who did he get the four-four from? A. I'm assuming Eddie. That was his gun. - 9 - Q. Had you seen -- was this four-four that Jerome grabbed the same gun that you had seen Eddie with back at Pauley's house? A. Yes, sir. Q. After Bear grabbed the gun from Eddie, where did he go? A. Chased Pudgey down the street. Q. What was Ozella doing with the van while Bear was chasing Pudge down the street? A. Following them. Q. How did Pudge look when he was running down the street away from Bear? A. Looked like he was still tied up. Q. Where did Bear chase Pudge? A. It was like a -- not a field, but it was a church. Princess was like, let's get him on the next street, and we'll pick him up. Said just leave him. Q. Leave who? Bear? A. Leave Bear. I remember Eddie saying, we ain't gonna leave my boy. We ain't gonna leave my boy, like that. And we pulled off to another street, and Bear got out the car. And it was like, he came -- like he came out of a path or something, and he got back in the van. Q. How many gunshots did you hear? A. I didn't hear none. Q. You didn't hear any gunshots? A. No, sir. Q. What happened when Bear got back into the van? - 10 - A. They asked, did you get him, did you kill him? Q. Who's they? A. This was Pauley and Eddie said. Q. And what did Bear say? A. Shot him two times in the head, like we always do. Q. Did you see the gun? A. At that time, no. Q. What happened then? A. Pulled off. Q. Who pulled off? A. Princess -- We all pulled off in the van. Notably absent from the alleged objectionable other act testimony of this witness is any objection or request for curative instructions by appellant. The syllabus in State v. Williams (1977), 51 Ohio St.2d 112 states: An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 OhioSt. 471, 11 O.O.2d 215, approved and followed.) However, at the next recess taken by the court, defense counsel raised the matter, but never sought a jury instruction from the trial court, and the trial court stated, "***. There was no objection when he said it. ***." - 11 - Furthermore, Evid. R. 404(B) states: (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Also, the record reflects that the prosecution did not refer to this alleged, "like we always do" remark in its final argument to the jury. We note that Crim. R.52(A) states: Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. This single statement, not timely objected to by appellant, does not furnish a basis to reverse appellant's convictions. Assuming, arguendo, that the court should have provided an instruction to the jury regarding this statement, the overwhelmingly convincing nature of the admissible evidence against Smith provided an independent basis for the verdicts returned by the jury. Perry and Creer both testified that Smith told Woods he would die, and both witnessed Smith shoot Woods claiming to have hit him three times in the chest. Upon realizing that Woods survived Smith's shooting, he gave his .44 Magnum revolver to Benson who chased and shot Woods twice in the head. Upon returning to the van, Smith checked the gun to verify two shots had in fact been fired from the weapon. - 12 - In considering error claimed as a result of Perry's testimony about Benson's statement, we conclude the third paragraph of the syllabus in State v. Lytle (1976), 48 Ohio St.2d 391, is instructive: Error in the admission of other act testimony is harmless when there is not reasonable possibility that the testimony contributed to the accused's conviction. (Crim. R. 52[A]; Chapman v. California 368 U.S. 18.) Here, our review of the record reveals that the testimony is harmless when compared to the overwhelming evidence presented by the State. We therefore conclude that the trial court did not err in connection with Perry's testimony concerning Benson's statement because defense counsel failed to raise a timely objection and because any claimed error in the admission of this testimony is harmless in accordance with Crim. R 52 and State v. Lytle, supra. Accordingly, this assignment of error is overruled. Judgment 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. 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. SWEENEY, C.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .