COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70788 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION HAROLD HAIRSTON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 11, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-214,513 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor JOHN R. MITCHELL, Assistant JAMES A. GUTIERREZ, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: THOMAS E. SHAUGHNESSY Attorney at Law 11510 Buckeye Road Cleveland, Ohio 44104 2 HOLMES, J.: This is an appeal from the judgment of the Cuyahoga County Court of Common Pleas in which the defendant-appellant, Harold Hairston, was convicted by a jury of aggravated murder in violation of R.C. 2903.01 with specifications for felony murder, aggravated felony and firearm and of aggravated robbery in violation of R.C. 2911.01 with specifications for aggravated felony and use of a firearm, and by the court of having a weapon while under a disability in violation of R.C. 2923.11. The facts giving rise to this appeal are as follows. On the night of December 26, 1986, James Diamond was killed by a single gunshot wound to the chest while in the parking lot of the ABC Money Exchange at East 79th Street and Carnegie Avenue in Cleveland, Ohio. On January 22, 1987, a four-count indictment was returned that charged defendant-appellant Hairston with aggravated murder of James Diamond with attached firearm, aggravated robbery and violence specifications; aggravated robbery of James Diamond with both firearm and violence specifications; possession of criminal tools with violence specifications; and having a weapon while under a disability. Defendant-appellant fled the jurisdiction, and a capias was issued on February 4, 1987. Defendant-appellant was arraigned on September 20, 1995 and entered a plea of not guilty to the charges against him. On April 4, 1996, the matter was bifurcated and proceeded to jury trial on counts one and two of the indictment. Count three was dismissed, and count four was tried to the court. 3 At trial, the state called ten witnesses: Dr. Robert Challener and Sharon Rosenberg of the Cuyahoga County Coroner's office; Mark Turcanik, Jeffrey Ryan, and Jon Qualey of the Cleveland Police Department; Thomas Cottone of the Federal Bureau of Investigation; and Joseph Boyd, Ricardo Smith, Daniel Marizette and Michael Jones, who were at the scene of the murder. Dr. Challener, a forensic pathologist, testified that he performed the autopsy on the victim, James Diamond. The autopsy revealed that the victim died of a single gunshot wound to the chest ruled as a homicide. Sharon Rosenberg, a forensic examiner, performed the trace evidence tests on the person and clothing of the victim. She testified that upon examination of the clothing of the victim, she was able to determine that the shooting distance of the fatal wound was probably under two inches. Further, Rosenberg testified that the victim's hands tested negative for having held a metal object. Joseph Boyd, an eyewitness to the event, testified as to what he saw on the night of Diamond's murder. He stated that at about 10:45 p.m., he was driving his new van east on Euclid Avenue and intended to turn south on East 79th Street when a car heading west on Euclid Avenue cut him off by turning south on East 79th Street in front him. He followed the car south on East 79th Street and watched it as it approached the intersection at Carnegie Avenue. First, the car pulled off toward the left side of the street, then it pulled onto the right sidewalk. Boyd saw two men get out of the car and run across East 79th Street. He said a third man got out 4 casually and walked in front of the van and seemed to fiddle with his jacket. Boyd's headlights shone upon the third man, but Boyd did not see the man's face at this time. From his van, Boyd was able to observe every move the men made outside the ABC Money Exchange. He saw Diamond come out of the Exchange and saw one of the three men approach Diamond and have a brief conversation with him. He saw Diamond give his wallet to that man. The man then reached into his pocket, pulled out a gun and shot Diamond once. Boyd quickly pulled his van into the parking lot and saw the shooter's face. Boyd positively identified the shooter in court as the defendant-appellant Hairston. Boyd stated that after the shooting, the three men returned to their car, a beige car with a smashed driver's-side door that was taped shut. Boyd told a bystander to call the police, and he followed the suspects' car, making a number of turns. At East 110th and Superior Avenue, the car stopped, and two of the passengers got out. One of the men who got out of the car was the shooter, who then entered a deli. Boyd asked a man to call police and gave him a quarter. Boyd then followed the suspect car until it ultimately stopped at East 110th Street. Boyd then started to return to the scene of the shooting but saw the emergency vehicles en route and followed them to Mt. Sinai Hospital, where he told the detectives what he had witnessed and gave them both the description and the location of the suspects' car. Boyd then returned to his home. The police came to his house about 2:00 a.m., and he rode with them to the area and was able to 5 identify the car involved in the shooting. The next day, Boyd participated in a line-up in which the driver of the car was present, but he was unable to identify the driver as a participant in the event. The shooter whom he had seen was not in the lineup. Subsequently, Boyd was shown a photo array of thirteen photos, from which he immediately identified appellant as the shooter. Three months before trial, ten years after the shooting, Boyd was shown the photos again and picked the same individual, the appellant. At trial, Boyd immediately picked the same picture of appellant from the identical photo array and identified him as the shooter whom he had seen the night of December 26, 1986. On cross-examination, Boyd admitted that in his original statement made on January 2, 1987, several days after the shooting, he stated that only one of the three men, the assailant, had run across the street. He admitted the statement was inconsistent with the testimony given on direct examination. Ricardo Smith testified that on the night of December 26, 1986, he drove his friend, James Diamond, to the ABC Money Exchange to cash his paycheck so that Diamond could buy diapers for his son. Smith waited in the car for Diamond. After a few minutes, Smith saw a man push Diamond in front of his car and saw Diamond hand something to the man. Smith heard a gunshot and saw Diamond fall. He immediately drove out of the parking lot and called his house from the McDonald's on Euclid Avenue. Although he could not identify the shooter, Smith feared for his life because the shooter had seen him waiting in the car. 6 Both Patrol Officer Jeffrey Ryan and Officer Mark Turcanik of the Cleveland Police Department testified that they responded to a call to the ABC Money Exchange at East 79th Street and Carnegie Avenue. Officer Ryan observed Diamond on the ground with a gunshot wound to the chest. Officer Turcanik arrived after the victim had been lifted into the ambulance. Officer Ryan spoke with Rico Smith and gathered other information at the scene. Both Officers Ryan and Turcanik testified that, from the scene of the shooting, they went to Mt. Sinai Hospital and, while there, they received from Boyd information about the shooting and both a description and the location of the suspects' vehicle. Later that night, Officers Ryan and Turcanik, along with several other patrol cars, went to the area of East 110th Street and Superior Avenue, where they observed the suspects' car for about ten minutes before Daniel Marizette got into the car and drove down 110th Street. Boyd, who was in a patrol car, identified the suspects' car, whereupon the police stopped the car and arrested the driver, Marizette. Jon Qualey, a detective with the Cleveland Police Homicide Unit in 1986, testified that he talked to the police officers at the scene of the murder and spoke with Boyd at Mt. Sinai Hospital. He took Boyd to the area of East 110th and Superior, where Boyd identified the car and Qualey took Marizette into custody. Marizette gave him the names of the occupants of the car that night. The following week, Qualey and his partner, Dennis Murphy, went to Boyd's home with a photo spread consisting of thirteen photos, from which Boyd identified appellant as the shooter. 7 Qualey testified that neither Boyd nor Ricardo Smith identified anyone as the shooter seen the night of December 26 from the line- up that was conducted in which Marizette was present. Daniel Marizette testified that he, appellant, Larry Ellis and Michael Jones were acquaintances from the same neighborhood and used drugs together. On the night of the murder, they were together in his 1976 Cutlass in search of drugs at the Hobby Horse Bar. Returning from the Hobby Horse, they had car trouble near the corner of East 79th Street and Carnegie Avenue. Marizette said that he got out of the car to work under the hood while Jones held the hood open. He said appellant left the area while they worked on the car. When they got the car running, Marizette said that he, Ellis and Jones started toward the Money Exchange looking for appellant but heard a shot. They turned, ran back to the car and started off. Appellant caught up with them near Euclid Avenue, where he got back into the car. Marizette said that appellant stated, I don't know what them fools were doing. Marizette testified that appellant told him to let him out on Superior. Appellant and Jones got out at East 110th Street and Superior Avenue; Marizette then drove the car to Ellis' place. Later, when Marizette left Ellis' place at East 107th and Superior, he was stopped by the police near East 110th and Orville and was arrested. He told the police the names of the occupants of his car that night. The next day, Marizette stated that he was placed in a line-up but was not identified by the witness. Although he was 8 charged with murder, the charges against him were dropped with neither threats nor promises made to him. Michael Jones testified that he was in Marizette's car on December 26, 1986, and testified to substantially the same story as Marizette. He said that Jones, Ellis and appellant got into Marizette's car at East 110th and Superior and began riding around. Marizette's car stalled at East 79th and Carnegie, and while Marizette worked on the car, he held the hood open and Ellis sat in the driver's seat. Appellant got out of the car and left the group, going toward the Money Exchange. Jones said that after they got the car running, he started toward the Money Exchange to get appellant but heard a gunshot and ran back to the car. Marizette then sped off. Jones said that appellant hopped into the car near East 79th and Euclid Avenue. Agent Thomas A. Cottone of the FBI Violent Crime Fugitive Task Force in New Jersey testified that as a result of a warrant, he arrested appellant, who was using the name Robert Mosley, on July 28, 1992 in Passaic, New Jersey and advised him of his constitutional rights at the time of arrest. Appellant told him that he had left Ohio because the police were looking for the wrong man regarding the murder on December 26, 1986 and that Dap, Larry and Mike had committed the murder. The state rested its case, and the defense moved for acquittal pursuant to Crim.R. 29, which was denied by the court. The defense then rested and renewed its Crim.R. 29 motion, which was again denied. Closing arguments were had, and the court instructed the 9 jury. During its instruction to the jury, the court gave the jury instructions on the lesser included offense of murder for the aggravated murder charge. Upon defense counsel's objection to the murder instruction, the court withdrew the murder charge from the jury. After deliberation, the jury returned verdicts of guilty on both counts one, aggravated murder, and two, aggravated robbery, each with the specifications therein. The court found appellant guilty of count four, having a weapon while under a disability. On April 18, 1996, appellant waived the mitigation phase of his trial based upon the court's acceptance of an agreed sentence on count one of life imprisonment with parole eligibility after thirty years, which sentence was to be served consecutively with the mandatory three-year sentence for the gun specification. On count two, the court imposed a sentence of ten to twenty-five years, and on count four, the court imposed a sentence of one and one-half years, each term to run concurrently with the sentence imposed on count one. Appellant timely appeals and advances three assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY AS TO A LESSER INCLUDED OFFENSE OF THE CRIME CHARGED WHERE NO SUCH INSTRUCTION WAS REQUESTED BY THE DEFENSE, THEREBY DENYING APPELLANT A FAIR TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. Appellant, in his first assigned, error contends that the trial court committed reversible error in instructing the jury on 10 the lesser included offense of murder where no such instruction was requested by the defense. Specifically, appellant contends that the court's self-admitted error prejudicially undermined the defense strategy and denied him a fair trial. A trial court may neutralize an error made in jury instruction by a correct statement of law so long as the charge is whole and proper. State v. Robinson (May 21, 1992), Cuyahoga App. No. 59588, unreported. A jury is presumed to follow the instructions, including curative instructions, given it by a judge. State v. Garner(1995), 74 Ohio St.3d 49, 59; State v. Henderson (1988), 39 Ohio St.3d 24. The record reflects that the trial court acknowledged its error in giving the instruction on murder as a lesser included offense of the aggravated murder charge where it was not requested by the defense. To remedy this error, the court stated: Ladies and gentlemen, I made a mistake in offering a charge as relates to the lesser included offense of murder. That would be a purposeful killing. I am absolutely wrong in offering that charge, so it is withdrawn. I appreciate it's going to be difficult for lay people to come here and understand all of this law and the technicalities of it, but you are to consider the aggravated murder while committing aggravated robbery. You are to consider the felony murder specification, and you consider the gun specification, all as set forth in count one of the indictment. It's after that that I suggest that this included the lesser offense of murder. Just delete that from your minds. There should have been no charge on murder. You will then consider the second count of the indictment, which is the aggravated robbery charge with the firearm and gun specification. 11 And counsel, there's no verdict form for murder; that will not be before you, the jurors. You can't make the mistake of finding someone guilty or not guilty of murder, because you aren't going to have a verdict form that allows for it. If I caused confusion, I apologize. I suspect you are pretty wise and you can deal with this. Anything further as to the substantive law, Mr. Gasper? MR. GASPER: Nothing on behalf of the State, your Honor. THE COURT: Thank you. Mr. Shaughnessy? MR. SHAUGHNESSY: Thank you, your Honor. Noth- ing. In this colloquy, the judge 1) withdrew the charge for murder, 2) requested the jurors to delete the charge from their minds, 3) refocused the instructions to the jurors regarding the aggravated murder charge with the felony murder specification, and 4) assured counsel and the jurors that they would not receive a verdict form for murder so that no verdict of murder might be made by mistake. Consequently, the record reveals that defense counsel objected to the instruction given in error and the court corrected the error in the presence of the jury to the satisfaction of defense counsel. There is nothing in the record before us to indicate that the jury as a whole, or any of its members individually, did not follow the instructions by the court or were led into believing that the defense might have welcomed a compromise verdict because the court instructed on murder. Consequently, appellant has not demonstrated prejudice undermining his right to a fair trial. 12 We must presume the jury followed the curative instruction given and presume that the jury in the matter sub judice understood that the charge for murder was withdrawn and did not consider the charge of murder in its deliberations. Accordingly, we find appellant's first assignment of error to be without merit. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ABUSED ITS DISCRETION BY DISALLOWING LINE-UP IDENTIFICATION PHOTOS FROM THE JURY'S DELIBERATIONS IN VIOLATION OF EVID.R. 402 AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. Appellant contends in his second assigned error that the trial court abused its discretion when it disallowed the thirteen line-up identification photos from the jury's deliberation, thus denying him a fair trial. Specifically, appellant contends that the exclusion of the photos by the court was arbitrary and unreasonable and constituted an abuse of discretion where the line-up photos were relevant evidence and their probative value substantially outweighed the danger of the permissible reasons for exclusion of such relevant evidence: 1) unfair prejudice; 2) confusion of the issues; 3) misleading the jury; or 4) undue delay or needless presentationsof cumulative evidence. On the other hand, appellee contends that the photos do not constitute relevant evidence and, consequently, are not admissible. Evid.R. 402 states: 13 All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. Therefore, in order to be admissible, the evidence must be relevant. Evid.R. 401 defines relevant evidence: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Appellant argues that the photos are relevant to his defense as they tend to establish or disestablish the believability of the witness identification of appellant shortly after the shooting of the victim and are relevant as the tools that led to the charges against appellant. We do not agree. The issue of whether testimony is relevant or irrelevant, confusing or misleading is best decided by the trial judge, who is in a significantly better position to analyze the impact of evidence on the jury than is the appellate court. City of Columbus v. Taylor (1988), 39 Ohio St.3d 162. The admissibility of photographs is left to the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107. The decision of a trial court will not be disturbed absent a clear showing of abuse 14 of discretion with attendant material prejudice to appellant. State v. Rowe (1993), 92 Ohio App.3d 652. In this prosecution for aggravated murder and aggravated robbery, where the photo line-up identification of appellant was not challenged by the defense as permitted in Crim.R. 12(B)(3) and the defense had the opportunity to cross-examine the witness regarding his identification of appellant, thereby placing his believability before the jury, the thirteen photos used in the line-up had no probative value and, thus, were irrelevant. Consequently,the trial court did not abuse its discretion, and it was not error to exclude their submission to the jury. Accordingly, we find appellant's second assignment of error without merit. ASSIGNMENT OF ERROR NO. III THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Appellant, in his third assigned error, contends that the verdict is against the manifest weight of the evidence. Specifically, appellant argues that the state presented two completely inconsistent versions of the events surrounding the shooting death of Diamond on December 26, 1986, and that the eyewitness, Boyd, was impeached by the defense when confronted with his written statement made days after the shooting that contradicted his trial testimony. 15 In State v. Martin (1983), 20 Ohio App.3d 172, 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; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. The evidence in this case is not conflicting. Moreover, even if inconsistencies occur, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. 16 A review of the record reveals that witnesses Marizette, Jones, and eyewitness Boyd placed appellant at the scene at the time James Diamond was murdered in the parking lot of the ABC Money Exchange. Witnesses Rico Smith and Boyd both saw the victim give something to his assailant before the assailant shot him. Boyd, the eyewitness to the murder, while carefully watching the events, saw appellant shoot Diamond at close range. Boyd was able to identify the picture of appellant from an unchallenged photo line- up days after the murder. Further, Boyd made an in-court identification of appellant as the man who shot Diamond on December 26, 1986. Although four men were in Marizette's car the night of the murder, appellant was the only one of the group who fled the jurisdiction. Upon his arrest six years later, appellant attempted to blame the killing on the other individuals who were with him that night. This court has reviewed the entire record of proceedings before the trial court. Upon thorough consideration of the law and the evidence presented at trial and as summarized above, this court finds there was substantial, competent, credible evidence before the court upon which the jury could find appellant was guilty of aggravated murder, aggravated robbery and the specifications attached thereto. Further, when we weigh the evidence and all reasonable inferences, we conclude that the jury did not so clearly lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 17 Accordingly, we find appellant's third assignment of error to be without merit. The judgment of the trial court is affirmed. 18 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 direc ting the Cuyahoga County Court of Common Pleas to carry this jud gment 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. JOHN T. PATTON, P.J. and LEO M. SPELLACY, J. CONCUR JUDGE ROBERT E. HOLMES* *SITT ING BY ASSIGNMENT: Robert E. Holmes, retired Justice of the Ohio Supreme Court. 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 pursua nt 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 rev iew by the Supreme Court of Ohio shall begin to run upon the .