COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70275 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIE DRAKE, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 30, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-325208 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Robert T. Glickman Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Patricia J. Smith 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- NAHRA, J.: On October 26, 1992, Donald Norwood was handcuffed, beaten, and robbed in his home by three assailants. Immediately after the incident, Norwood identified the first assailant, Lionial Drake, by his nickname and proper name and appellant, William Drake, Lionial's uncle, by his nickname "Sleepy" to witnesses and the police. He was unable to identify the third assailant. In December, 1992, the Cuyahoga County Grand Jury indicted Lionial Drake for the burglary, assault, and robbery of Donald Norwood. The indictment did not name appellant. The case against Lionial Drake was not prosecuted, in part because the victim failed to appear. The case was dismissed without prejudice. In June, 1995, Lionial Drake and appellant were indicted for the burglary, assault, and robbery of Donald Norwood. The court granted appellant's motion for a separate trial since Lionial Drake was also indicted for intimidating Norwood, causing him to fail to appear for the proceedings under the 1992 indictment. The court found that appellant would be unduly prejudiced by the evidence the prosecution was prepared to present against Lionial Drake. The indictment was amended for appellant's trial. It contained five counts: 1) aggravated burglary, R.C. 2911.11, with firearm and aggravated felony specifications; 2) felonious assault, R.C. 2903.11, with firearm and aggravated felony specifications; 3) having a weapon under disability, R.C. 2923.13; 4) possession of criminal tools, R.C. 2923.24, with a violence specification; and 5) aggravated robbery, R.C. 2911.01, with firearm and aggravated -3- felony specifications. The aggravated felony specifications were bifurcated from the jury trial and were determined by the court after trial. At trial, the state called Donald Norwood, the victim, who testified that appellant entered his home after Lionial Drake had gained entry under the pretense of using the phone. Norwood testified that appellant helped to handcuff him, hit him in the head with his gun, and burned him with a cigarette lighter in an attempt to make him disclose the location of any money or valuables in his home. The state presented three law enforcement officers. Special Agent Douglas Williams, a Federal Bureau of Investigation agent, testified that he helped Norwood obtain the indictment of appellant in 1995. Detective Arsie Taylor, a Cleveland Policeman, who investigated the case, and Detective Tommy Hall, a Cleveland Policeman, who, as a patrol officer, initially investigated the robbery. The state also called Sean Hudson and Willie Hudson, neighbors of the victim. They were the first to assist Norwood after the robbery. Willie Hudson testified that he saw the three assailants walking away from Norwood's home; that he was able to identify Lionial Drake; but that he did not see the other men well enough to identify them. The defense did not present any evidence. The jury returned guilty verdicts on all counts of the indictment and the court found appellant guilty of the aggravated felony specifications. -4- Appellant was sentenced to ten to twenty-five years for aggravated burglary, eight to fifteen years for felonious assault, and ten to twenty-five years for aggravated robbery; the sentences to be served concurrently. Appellant was sentenced to three years actual incarceration for the firearm specifications, two to five years for having a weapon under disability, and to two to five years for possession of criminal tools; the sentence to be served consecutively to the sentences for aggravated burglary, aggravated assault, and aggravated robbery. I. Appellant's first assignment of error reads: THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW, BY THE STATES'S (SIC) UNJUSTIFIABLE DELAY BETWEEN THE COMMISSION OF THE OFFENSE AND THE INDICTMENT. Appellant argues that the two and one-half year preindictment delay violates his right to due process of law as guaranteed by the United States and Ohio constitutions because the delay was unjustifiable and caused him actual prejudice in preparing and presenting a defense. The state argues that the delay caused appellant no actual prejudice and thus did not violate his right to due process of law. In addition to the statute of limitations, the due process clause serves a limited role to protect those accused of crimes against an oppressive delay in the prosecution of those crimes. United States v. Lovasco (1976), 431 U.S. 783, 789-90; United States v. Brown (C.A. 6 1992), 959 F.2d 63, 65. An unjustifiable preindictment delay which results in actual prejudice to a -5- defendant is a violation of the defendant's right to due process of law. State v. Luck (1984), 15 Ohio St.3d 150, 150, 472 N.E.2d 1097, 1099, syllabus paragraph 2. The defendant has the burden of establishing that 1) the defendant suffered actual prejudice at trial and 2) the pre- indictment delay was unjustifiable. Brown, 959 F.2d at 66 ("`A showing of prejudice to the defendant, without more, is not enough to prove a due process violation; rather, there must also be a consideration of the reasons for the delay.'", quoting United States v. Atisha (C.A.6 1986), 804 F.2d 920, 928, cert. denied 479 U.S. 1067; see, Luck, 15 Ohio St.3d at 153-54, 472 N.E.2d at 1102. To meet the burden of showing actual prejudice, "there should appear some evidence or facts, independent of defendant's bare assertion, tending to show [the actual prejudice complained of.]" United States v. Muniz (E.D. Va. 1988), 690 F.Supp. 482, 486, affirmed (C.A. 4 1989), 875 F.2d 317. The issues involved in determining whether a preindictment delay violates a defendant's rights to due process are not the same as those issue of postindictment delay. State v. Glazer (June 19, 1996), Tuscarawas App. Nos. 95AP100100, 95AP100101, 95AP100102, unreported, citing United States v. Marion (1971), 404 U.S. 307; State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097. The length of the delay is a key factor to be considered in whether the preindictment delay is justifiable. Luck, 15 Ohio St.3d at 158, 472 N.E.2d at 1105. -6- In this case, appellant has alleged that the state was negligent in failing to indict appellant in 1992. However, we need not determine whether the state's negligence amounted to unjustifiable delay. The appellant must first show that he was actually prejudiced at trial by the two and one-half year delay between the date of the offense and his indictment. He has not met this burden and his first assignment of error is not well taken. Appellant alleges in his brief that due to the delay, he has been prejudiced by "faded memories" and the "loss of evidence possibilities" making it "virtually impossible" for him to determine his whereabouts at the time of the incident. These bare allegations are not enough. See, Muniz, supra. Appellant has not demonstrated that the alleged faded memories or his inability to present an alibi defense was actually hindered by the two and one- half year delay in bringing the indictment. Appellant's only assertion of actual prejudice is contained in a footnote in his brief. Appellant asserts that he was unable to produce a "potential alibi witness" who was incarcerated in Pennsylvania. Appellant mischaracterizes the proposed testimony of this witness. At trial, appellant stated to the court that he proposed to call this witness to rebut Norwood's testimony as to how he knew appellant prior to being assaulted and robbed. The preindictment delay did not cause appellant's inability to produce the witness, nor was the inability to produce this witness complained of as prejudicial error. Moreover, appellant's counsel had no intention -7- of presenting an alibi defense and would have been prohibited from doing because he failed to provide proper notice to the prosecution and the court. II. Appellant's second assignment of error reads: PROSECUTORIAL MISCONDUCT THROUGHOUT THE TRIAL AND IN CLOSING ARGUMENT DENIED THE APPELLANT HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL. Appellant argues that the prosecutor improperly attempted to cause the jury to convict appellant with an accusation that he had intimidated the victim not to appear in court. Appellant cites three instances where he alleges the prosecutor engaged in misconduct. First, during his opening statement, the prosecutor stated that: The victim, between the event and talking to the detectives and bringing charges, is contacted by various people. First people try to give him things not to show up. Eventually, he receives threats towards himself and his family that, "If you show up, we're going to do harm to you." Next, appellant complains that during the direct examination of the victim, the prosecutor asked why he had not appeared on a previous court date and the victim responded that he had been "getting intimidating phone calls, one specifically." The prosecutor asked about the particular phone call and defense counsel's objection to that question was sustained. Appellant notes that in closing argument, the prosecutor stated that "Mr. Schumer [appellant's trial counsel] also made an opening statement, said some things about Donald Norwood, about -8- some money." Appellant's counsel's objection to this argument was sustained. In State v. Keenan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203, the Ohio Supreme court stated that prosecutorial misconduct only warrants reversal of a conviction where the defendant is deprived a fair trial. 66 Ohio St.3d at 405, 613 N.E.2d at 206, citing State v. Aponovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400. To determine whether misconduct by a prosecutor constitutes a denial of due process, it is necessary to examine "the effect the misconduct had on the jury in the context of the entire trial." Keenan, 66 Ohio St.3d at 410, 613 N.E.2d at 219, citations omitted. Some of the factors relevant to this determination are whether the misconduct is an isolated incident, whether the court gave curative instructions, and whether the evidence of guilt of the defendant was overwhelming. Keenan, 66 Ohio St.3d at 40-41, 613 N.E.2d at 219-20. Appellant's characterization of the prosecutor's comments and questions regarding the delay can not be characterized as misconduct warranting reversal of appellant's convictions when scrutinized by the factors as outlined in Keenan, supra. Although the court granted appellant a separate trial and prohibited the prosecution from introducing audio and video tapes of conversations between Lionial Drake and Donald Norwood, the prosecution was still entitled to offer an explanation as to why there was a two and one-half year delay between the date of the offense and the indictment. -9- Moreover, appellant's trial counsel insinuated in his opening statement and in cross-examination of the victim that the victim had taken money for failing to appear in the state's prosecution of Lionial Drake under the 1992 indictment. Because of this, the prosecution's comments (far short of introducing evidence of Lionial Drake's intimidation of the witness) were not improper. Finally, the evidence presented against appellant was overwhelming against him. The victim testified that he had known appellant prior to the crime. Additionally, his testimony was corroborated by his neighbors' testimony and that of the Cleveland Police officers. Because of this, even if the conduct of the prosecutor could be characterized as misconduct, the impact on the jury would be minimal in light of the evidence against appellant. Appellant also argues that the prosecutor's characterization of the delay between the offense and the indictment as "a two and a half year break" in his closing argument amounted to misconduct. Again, this comment alone does not establish prosecutorial misconduct. It is mere argument reminding the jury that although the offense was committed three years prior to trial, they should not take the state's delay in prosecution into account in determining appellant's guilt or innocence. The characterization is not improper and does not constitute prosecutorial misconduct requiring reversal of the jury's findings. For these reasons, appellant's second assignment of error is overruled. -10- III. Appellant's third assignment of error reads: THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING THE DEFENSE MOTION FOR A MISTRIAL PROVIDED BY THE STATE'S USE OF AN IMPROPER LINE OF ARGUMENT. A motion for mistrial should be granted only where substantial rights of the defendant are actually prejudiced. Tingue v. State (1914), 90 Ohio St. 368, 108 N.E. 222, syllabus paragraph 3; State v. Emory (1983), 12 Ohio App.3d 41, 42, 465 N.E.2d 920, 921. It is within the sound discretion of the trial court whether to grant or deny a motion for a mistrial. State v. Smidi (1993), 88 Ohio App.3d 177, 623 N.E.2d 655. An abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149. Appellant has not demonstrated that any of his substantial rights were actually prejudiced. He merely reiterates his belief that the prosecutor acted improperly by attempting to explain the two and one-half year delay between the date of the offense and the prosecution. As discussed in Part II, supra, we do not find that conduct by the prosecutor to be misconduct, nor do we find any of appellant's rights substantially prejudiced. Accordingly, appellant's third assignment of error is not well taken. Judgment affirmed. -11- 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. BLACKMON, P.J., and SPELLACY, J., CONCUR. JOSEPH J. NAHRA 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 .