COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70197 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DERRICK WHEATT : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 16, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-324,431 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: for plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL D. HORN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HARVEY B. BRUNER BRET JORDAN Attorneys at Law Bruner and Shapiro Co. 1600 Illuminating Building 55 Public Square Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: 1 Defendant-appellant Derrick Wheatt appeals from his convic- tion of murder with a firearm specification. We find no error in the court below and affirm the trial court's decision. Defendant Wheatt, a juvenile, was charged with one count of aggravated murder, R.C. 2903.01, with a firearm specification. Pursuant to Juv.R. 30, he was bound over to the Cuyahoga County Common Pleas Court. After entering a plea of not guilty, he was tried jointly with two co-defendants. On January 18, 1996, a jury found Wheatt guilty of one count of murder, R.C. 2903.02, with a gun specification. On the same day, he was sentenced to fifteen years to life on the murder conviction and to three years on the gun specification. It is from these convictions that defendant Wheatt appeals, claiming errors at trial prejudiced his rights. The state's evidence established that on Friday, February 10, 1995, Clifton Hudson, Jr. was murdered while walking on Strathmore Avenue in East Cleveland, Ohio. His death was caused by multiple gunshot wounds from one or more firearms, which caused him to bleed to death. The coroner ruled his death a homicide. 1 The records from the juvenile court indicate that the correct spelling of the appellant's surname is "Wheatt." - 3 - Tamika Harris, age fourteen, witnessed the murder. She and her friend Monique were walking home on Strathmore Avenue about 5:45 p.m. when they heard a volley of two or three gunshots. Monique turned and ran, but Ms. Harris saw the shooter come around from the back of a black Blazer-type truck, stand in the street, and shoot Clifton Hudson as he was standing on the sidewalk. She testified that the person whom she saw shoot the victim had a black gun "larger than a .25." She then heard three to five more shots and saw Hudson fall to the ground. After the shots were fired, the truck went south and made a right on Manhattan, almost hitting another car. The shooter, whom she later identified as Eugene Johnson, ran past her. She was able to see him clearly as it was still light outside. She said Johnson ran toward the truck, and it slowed down. Although she did not see Johnson get into the truck, after the truck sped away, she did not see Johnson again. The truck then turned left on Ardenall. She was able to see two "black" people in the front seat of the truck. She then went over to the victim, heard him request, "Help," and saw his eyeballs roll back into his head. Patrolman Tavano of the East Cleveland Police Department responded to the murder scene and interviewed Reginald Longino, Mike Wilson and Eric Reed, who were there. Although each stated he heard the shots, each man, including Eric Reed, told Ptl. Tavano that he did not see anything. When Ptl. Tavano spoke to Ms. Harris, however, he realized that she had pertinent information - 4 - regarding the incident, and he directed her to the detectives. Ms. Harris gave a statement to the East Cleveland police that same evening regarding what she had witnessed, including her description of the black 4x4 truck, the shooter being of medium complexion and over 5'7", and the shooter's clothing, which she described as a "red and blue Tommy Hilfiger coat, black skully, and black pants." Later that evening, Ptl. Tavano observed the suspect truck in the driveway at 1836 Knowles, about one-half mile from the scene of the murder. He then called the detectives, who went to the Knowles address. They subsequently followed the truck to Ardenall, where they arrested the defendant and the co-defendant, Laurese Glover. At the time of his arrest, defendant was wearing his Cleveland Indians jacket. The black 4x4 GMC truck was taken to the police garage. In the presence of their parents, defendant and Laurese Glover each gave a statement to the police. Later during the night, co-defendant Eugene Johnson was arrested and, in the presence of his mother, made his statement to the police. When arrested, Johnson was wearing his blue, green and maroon Nautica down jacket over a black hooded sweatshirt. A pair of gloves was found in his jacket pocket. Detective Johnstone testified as to the oral statements made by Derrick Wheatt and his co-defendants to the police. In each of these statements, Wheatt and his co-defendants stated that while they were in the black truck on Strathmore at the time of the murder, Glover was driving, defendant Wheatt sat in the front - 5 - passenger seat, and Johnson sat in the back seat. Each stated that he witnessed the murder of Hudson by a thin, light-skinned black man. Defendant Wheatt and Glover noted the shooter as wearing a blue jacket; Johnson, however, stated the shooter's jacket was brown. The day after the murder, Ms. Harris returned to the East Cleveland Police Station, where she identified the black 4x4 truck as the one she saw during the murder. She identified Johnson's black hooded sweatshirt and his Nautica down jacket as the cloth- ing worn by the shooter whom she had seen. The Nautica jacket was similar in color and description to the one described in her statement the evening before that she misidentified as a "Tommy Hilfiger jacket." When Detective Perry showed her photographs of defendant Wheatt and co-defendants Glover and Johnson, she immedi- ately picked the photograph of Eugene Johnson as the shooter. Detective Perry testified that the police did not direct Ms. Harris's identification of the shooter, of his clothes, or of the black 4x4 truck. At the request of the East Cleveland police, co-defendant Glover's 4x4 truck was processed for gunshot residue. The Ohio Bureau of Criminal Investigation determined that lead residue consistent with a firearm having been fired was found on the exterior passenger-side door below the window, the interior passenger-side door armrest, and the front passenger seat bottom. - 6 - The hands of each of the subjects, including defendant Wheatt, were swabbed by the East Cleveland police during the night of their arrest for atomic absorption testing. The findings from both sides of both hands of defendant Wheatt were positive for antimony and barium, consistent with gunshot residue. The state's expert concluded that such findings indicate that the defendant either fired a weapon or that his hands were "very, very close" to a weapon as it was fired. The hands of each of the two co-defen- dants were found negative for gunshot residue. Defendant Wheatt's Cleveland Indians jacket was analyzed and found to have nitrite particles on the left sleeve consistent with its being exposed to gunshot residue. The jacket of co-defendant Johnson did not have a positive reaction to the testing; however, the test result on the palm of his left glove was consistent with gunshot residue. The results of the test on the right palm were inconclusive, and results of the test on the backs of the gloves were negative. At the close of the state's case, the defense moved for acquittal pursuant to Crim.R. 29. The court found that sufficient evidence of prior calculation and design did not exist to prove the charge of aggravated murder, but evidence sufficient to support the charge of murder was presented by the state, and, therefore, the motion for acquittal was denied. The defense presented two witnesses. First, Leroy Malone testified on behalf of co-defendant Johnson. He stated that he heard shots, observed a black Ford Bronco, and saw a light-skinned - 7 - man running on foot behind the vehicle. The man stopped, put something in his pants, and ran down Shaw Avenue. He did not get into the truck. Malone stated that he knew all three defendants in this case. He saw the three people in the black truck who resembled the defendants. A neighbor told him it was Wheatt, Glover and Johnson, but he did not give the names of these indi- viduals to the police because he "assumed" that the police already knew who they were. He testified that the man he saw running away was not one of the defendants. Next, Eric Reed, testifying on behalf of defendant Wheatt, said that when he heard the shots, he ran to his upstairs window, from where he saw the shooter standing and the victim on the ground. He described the shooter as a light-skinned black male wearing a dark jacket and hood. He further testified that none of the defendants was the shooter whom he had seen that afternoon. The defense rested, and counsel renewed the Crim.R. 29 motions for acquittal, which were denied by the court. Motions for mistrial were made and were denied by the court. The jury returned guilty verdicts against defendant Wheatt on both the charge of murder and the gun specification. The defen- dant timely appeals these convictions. - 8 - ASSIGNMENT OF ERROR I THE EVIDENCE PRESENTED BY THE STATE OF OHIO IN ITS CASE IN CHIEF WAS INSUFFICIENT AS A MATTER OF LAW AND PURSUANT TO RULE 29 OF THE OHIO CRIMINAL RULES OF PROCEDURE THE TRIAL COURT ERRED BY NOT DISMISSING. Defendant-appellant contends that the trial court should have granted his motion for acquittal as the state failed to meet its burden of proof as required by R.C. 2901.05(A), which provides that: Each person accused of an offense is presumed innocent until proven guilty beyond a reason- able doubt, and the burden of proof is upon the prosecution. Appellant contends that when the evidence presented at trial is examined, it is revealed that such evidence, even if believed, would not convince the average mind beyond a reasonable doubt of the appellant's guilt of aiding and abetting another in the com- mission of Clifton Hudson's murder and that, therefore, the trial court erred by denying his Crim.R. 29 motion for acquittal on each of the charges. Appellant's first assignment of error is without merit. A motion for acquittal is governed by Crim.R. 29(A), which states in pertinent part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for - 9 - judgment of acquittal made at the close of the state's case. It is well established that an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond 2 a reasonable doubt. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element 3 of a crime has been proven beyond a reasonable doubt. It is uncontroverted that appellant Derrick Wheatt was at the scene of the murder on Strathmore Avenue, riding in the front passenger seat of the black 4x4 truck. Witnesses heard two or three gunshots at first. The eyewitness to the shooting identi- fied Eugene Johnson as the person who discharged the last shots into the victim. Eugene Johnson, Laurese Glover and appellant, himself, made statements to the police that they were together in the truck at the time of the murder. The passenger side of the 2 State v. Jenks (1991), 61 Ohio St.3d 259. 3 State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. - 10 - truck, where appellant admitted he sat, contained lead residue beneath the window on the outside and on the armrest inside the door. These findings are consistent with a gun having been fired. Appellant's Cleveland Indians jacket, which he wore at the time of his arrest, contained nitrite residue on the sleeve, a finding consistent with a gun being fired. The passenger seat on which appellant sat contained lead residue, a finding consistent with a gun being fired. Both of appellant's hands contained residue on both sides, a finding consistent with the firing of a weapon. Reviewing the evidence in a light most favorable to the state, we find that this evidence, if believed, could convince a rational trier of fact that the state had proven beyond a reasonable doubt each element of the charge of murder--that appellant Derrick Wheatt, as a principle, purposely caused the death of Clifton Hudson. Accordingly, the trial court did not err when it denied each of appellant's motions for acquittal pursuant to Crim.R. 29. Appellant's first assignment of error is overruled. ASSIGNMENT OF ERROR II THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment of error, defendant-appellant complains that the jury verdict finding him guilty of murder with a gun specification was against the manifest weight of the evidence. Specifically, appellant contends that the totality of the state's - 11 - case was based upon the unsupported and controverted testimony of the eyewitness and that there was not enough evidence presented that, if believed, would convince the average mind of the appel- lant's guilt beyond a reasonable doubt. 4 In State v. Martin, the court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The Martin court, at p. 175, stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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), 4547 U.S. 31, 38, 42. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; 4 State v. Martin (1983), 20 Ohio App.3d 172. - 12 - (8) whether the evidence is vague, uncertain, conflicting or fragmentary. Moreover, the weight of the evidence and the credibility of 5 the witnesses are primarily for the trier of fact. A careful review of the testimony of eyewitness Tamika Harris does not reveal such inconsistency as to render it unreliable, uncertain, vague, incredible or conflicting. Her testimony was not impeached, and there is no evidence that her testimony was self- serving. Further, we do not see the conviction of the appellant as being grounded in Ms. Harris's identification of the co-defendant, Johnson. It is uncontroverted that the appellant was on the scene of the murder, in the black truck, sitting in the front passenger seat. As we have shown above, the state presented uncontradicted evidence to establish that gunshot residue was found below the window of the passenger side of the truck, on the seat of the truck where appellant was sitting, on the appellant's hands, and on the appellant's jacket sleeve. Upon review of the entire record before us, when we weigh the evidence and all reasonable inferences and when we consider the credibility of the witnesses, including Tamika Harris, we do not find that the jury clearly lost its way and created such a manifest miscarriage of justice in resolving the conflicts in the evidence that the conviction must be reversed and a new trial ordered. 5 State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. - 13 - Accordingly, appellant's second assignment of error is not well taken and is overruled. ASSIGNMENT OF ERROR III APPELLANT'S DUE PROCESS RIGHTS AND RIGHT TO A FAIR TRIAL WERE VIOLATED BY PROSECUTORIAL MISCONDUCT DURING OPENING AND CLOSING ARGU- MENTS. Within this assigned error, the defendant-appellant contends that two prosecutorial remarks were so prejudicial that they tainted the jury and deprived him of his right to due process and a fair trial. Specifically, appellant complains that during opening statement, the prosecutor stated that "*** the defendants in this case are members of a gang called the Tribe." Further, appellant complains that the prosecutor's comment regarding the defense's failure to present expert testimony to dispute the state's expert witness, who testified that gunshot residue was present on the hands of the appellant, rose to the level of a comment on his exercise of his constitutional right to remain silent. We find appellant's arguments to be without merit. "The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 6 N.E.2d 394, 400." To determine whether remarks made by a prose- cutor constitute prejudicial error, a two-step process must be 6 State v. Keenan (1993), 66 Ohio St. 3d 402, 405. - 14 - undertaken. The court must decide first whether the remarks were improper and second, if so, whether they prejudicially affected the 7 substantial rights of the appellant. To determine prejudice, the effect of any misconduct must be considered in light of the whole 8 record. The initial remark complained of here concerning the appel- lant's association with a "gang" was made by the prosecutor during the voir dire of the jury, not during opening statement. Upon objection by defense counsel, the court properly instructed the jury that anything said during voir dire was not evidence. With the proper curative instruction given, "[a] jury is presumed to follow the instructions, including curative instruction, given it 9 by a judge." Accordingly, in light of the whole record, we do not see such prejudice to the appellant as to affect his substantial rights and, therefore, find no reversible error. The second complained-of remark was made by the prosecutor during closing argument. The prosecutor commented on the gunshot residue found on the clothing of the appellant and stated that "the defense has brought no one in to dispute that. And they could, if they didn't believe it." Appellant contends that this remark, which comments on his failure to challenge the state's expert, is tantamount to 7 State v. Smith (1984), 14 Ohio St.3d 13. 8 State v. Durr (1991), 58 Ohio St.3d 86. 9 State v. Garner (1995), 74 Ohio St.3d 49, at 59. - 15 - commenting on the appellant's failure to testify and present evidence. We do not find this remark as rising to the level of commentary on the appellant's constitutional right to remain silent, which cannot be commented on by the state at trial, nor do we find that it placed the burden of proof upon the appellant. Accordingly, the prosecutor's statement during closing argument was not improper, and, therefore, our analysis need go no further. Appellant's third assignment of error is not well taken and is overruled. ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS, WHEN IT DENIED APPELLANT'S MOTIONS FOR MISTRIAL. Appellant complains that the statements made by the prosecu- tor complained of in Assignment of Error No. III created such prejudicial concern on the part of the jury members for their safety that the appellant was deprived of his right to due process and a fair trial. Specifically, appellant contends that under these circumstances, it was error for the trial court to deny appellant's motions for mistrial. A motion for mistrial based upon prosecutorial misconduct is governed by Crim.R. 33(A)(2). The granting or denying of a motion for mistrial is within the discretion of the trial court and will - 16 - 10 not be reversed unless there is an abuse of that discretion. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, 11 arbitrary or unconscionable." Having determined above that the statements made by the prosecutor and complained of here were not improper and do not amount to prosecutorial misconduct, it cannot be said that the trial court abused its discretion when it denied the appellant's motions for mistrial on those bases. Accordingly, appellant's fourth assignment of error is overruled. ASSIGNMENT OF ERROR V APPELLANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF OHIO WHEN APPEL- LANT'S TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS TAMIKA HARRIS' OUT-OF-COURT AND IN- COURT IDENTIFICATIONS. [SIC] Appellant contends that his right to effective assistance of counsel was violated when his trial counsel failed to file a motion to suppress Ms. Harris's out-of-court and in-court identifications of co-defendant Eugene Johnson. Specifically, appellant claims that without her identification testimony, the state would not have been able to prove beyond a reasonable doubt that appellant aided or abetted Eugene Johnson in the murder of Clifton Hudson. 10 State v. Shepard (1983), 13 Ohio App.3d 117. 11 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 17 - To prevail on a claim of ineffective assistance of counsel, appellant must show that his counsel substantially violated an 12 essential duty and that appellant was prejudiced thereby. In order to succeed on a claim of ineffective assistance of counsel, appellant must satisfy the following two-prong test: first, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client; next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. Courts presume that duly licensed attorneys perform effec- 14 tively. In this instance, appellant claims that the out-of- court identification procedures were unnecessarily suggestive and, therefore, unreliable and that they should have been suppressed and excluded from evidence of this case. Our first inquiry is to determine whether the identifications 15 complained of here were impermissibly suggestive. There is no evidence in the record before us to support appellant's claim that the out-of-court identification was made by suggestive identifica- tion procedures. Further, the record reflects that the in-court identification made by Ms. Harris had its origin in observation independent from the pre-trial identification. 12 Strickland v. Washington (1984), 466 U.S. 668. 13 State v. Lytle (1976), 48 Ohio St.2d 391, 396-97. 14 Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. 15 State v. Merrill (1984) 22 Ohio App.3d 119. - 18 - "*** [R]eliability is the linchpin in determining the admis- 16 sibility of identification testimony ***." The standards to be used in testing the reliability of identification testimony are 17 18 found in Neil v. Biggars and State v. Moody. These factors are: the opportunity of the witness to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of the witness's prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the 19 length of time between the crime and the confrontation. The record reflects that Ms. Harris saw Eugene Johnson as he ran around the truck, confronted the victim, and shot him. It was bright outside, and Johnson ran right past Ms. Harris. She was able to see his face "enough to identify him." She described the clothing that the shooter was wearing and identified Johnson's coat and hooded sweatshirt the next day. The morning after the murder, she "immediately" chose the picture of Johnson as the person whom she saw shoot the victim. In court, she identified Eugene Johnson as the person who did the shooting because she "saw his face." With this record before us, we find that both the out-of- court and in-court identifications of Eugene Johnson by Ms. Harris are reliable because (1) she had the opportunity to view Johnson, 16 Manson v. Brathwaite (1977), 432 U.S. 98. 17 Neil v. Biggars (1972) 409 U.S. 188, 199. 18 State v. Moody (1978), 55 Ohio St.2d 64. 19 Moody at 67. - 19 - (2) her description of Johnson and his clothing was accurate, (3) she identified Johnson the morning after the murder, and (4) she was able to pick out Johnson's photograph "immediately" when shown a photo array. Appellant has not shown that the identification procedures either were impermissibly suggestive or resulted in an unreliable identification. We do not find the identifications of co-defen- dant Johnson tainted. It cannot be said, therefore, that appel- lant's counsel's performance at trial was seriously flawed and deficient for his failure to move to suppress the identification evidence of appellant's co-defendant that was properly before the court. Further, appellant can show no prejudice in these proceed- ings as sufficient evidence exists in the record independent of the identification evidence of the co-defendant Johnson to support the conviction of appellant as a principle in the murder of Clifton Hudson. Accordingly, appellant's Assignment of Error No. V is not well taken and is overruled. ASSIGNMENT OF ERROR VI APPELLANT HEREBY JOINS, ADOPTS AND INCOR- PORATES ANY AND ALL ASSIGNMENTS OF ERROR AND ARGUMENTS PRESENTED BEFORE THIS HONORABLE COURT - 20 - BY HIS CO-DEFENDANTS-APPELLANTS IN THEIR APPELLATE BRIEFS. Appellant, in this assignment, requests this court to consid- er the arguments within the appeals of his co-defendants-appellants Laurese Glover and Eugene Johnson. App.R. 16(A)(7) requires an appellant to include in his brief an argument containing his contentions with respect to each assignment of error and the reasons in support of his contentions, with citations to the authorities and parts of the record upon which he relies. App.R. 12(A) provides that this court may disre- gard an error not identified in the record or separately argued in the brief. An appellate court has no duty to rule upon an assign- ment of error where the appellant claims "other errors not specif- 20 ically assigned." Although not required to do so, we have reviewed each assign- ment of error and the arguments of each co-defendant-appellant, and we find no error. Accordingly, we affirm the decision of the court below. 20 In re Brown (1989), 60 Ohio App.3d 136. - 21 - 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 Cuyahoga County Court of Common Pleas 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. LEO M. SPELLACY, C.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .