COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70915 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION HOWARD BEVERLY : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 2, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-329278 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR FRANCINE GOLDBERG (#0053391) JOHN R. MITCHELL (#0066759) ASSISTANT PROSECUTING ATTORNEYS The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT M. INGERSOLL (#0023748) ASSISTANT PUBLIC DEFENDER 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1513 (CONTINUED ON NEXT PAGE) For Defendant-Appellant: HOWARD J. BEVERLY, PRO SE #172-335 Mansfield Correctional Institution 2 P.O. Box 788 Mansfield, Ohio 44901 LEO M. SPELLACY, J.: Defendant-appellant, Howard Beverly ( appellant ), appeals from his conviction for aggravated murder in violation of R.C. 2903.01. Appellant assigns the following five errors for our review: 3 . HOWARD BEVERLY WAS DENIED HIS SIXTH AMENDMENT [RIGHT] TO SELF-REPRESENTATION, WHEN THE TRIAL COURT DENIED HIS PRETRIAL MOTION TO REPRESENT HIMSELF PRO SE. . HOWARD BEVERLY HAS BEEN DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR AGGRAVATED MURDER, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. . HOWARD BEVERLY WAS DENIED HIS CONSTITUTIONAL RIGHT TO A TRIAL BEFORE A JURY THAT WAS FREE OF OUTSIDE INFLUENCES BY THE INTRODUCTION OF GRUESOME PHOTOGRAPHS OF HARVEY MILLER WHOSE PROBATIVE VALUE WAS FAR OUTWEIGHED BY ITS PREJUDICIAL EFFECT. . HOWARD BEVERLY WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. . HOWARD BEVERLY'S CONVICTION FOR AGGRAVATED MURDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant, in his supplementary brief, set forth the following errors for our review: . HOWARD BEVERLY WAS DENIED HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW WHEN THE PROSECUTION DID NOT REVEAL ALL IT KNEW ABOUT THE ILLEGAL DEALS WHICH WERE MADE WITH WITNESSES GAINES AND MAGBIE AFTER THE FILING AFTER THE FILING OF THE MOTION TO EXAMINE EXCULPATORY AND MITIGATORY MATERIAL. II. HOWARD BEVERLY WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW BY THE PROSECUTIONS FAILURE TO DRAFT A PROPER BILL OF PARTICULARS. III. HOWARD BEVERLY'S DUE PROCESS RIGHTS WERE VIOLATED WHEN JUDGE ANTHONY CALABRESE REFUSED TO GIVE WRITTEN FINDINGS OF FACT ON THE MOTIONS SUBMITTED PRIOR TO TRIAL UNDER CRIM.R. 12(E). 4 Finding appellant's appeal and supplementary brief to lack merit, the judgment of the trial court is affirmed. I. On October 19, 1995, appellant was indicted on one count of aggravated murder in violation of R.C. 2903.01 with a firearm specification. The firearm specification, however, was later deleted from the indictment. On November 22, 1995, appellant plead not guilty to the indictment and on May 1, 1996, the case proceeded to trial. On June 4, 1996, appellant was convicted of aggravated murder in violation of R.C. 2903.01. Appellant was immediately sentenced to a term of life imprisonment. (Journal Entry, June 4, 1996). II. On August 1, 1980, appellant and Byron Gaines spent the day together looking for drugs. Later that evening Harvey Miller joined appellant and Byron Gaines in their search for drugs. At approximately2:00 a.m., appellant, Byron Gaines and Harvey Miller went over to Michael Magbie's house located at 3741 East 154th Street, Cleveland, Ohio. While at Magbie's house, appellant, Byron Gaines and Harvey Miller proceeded to use drugs. Approximately one-half hour later appellant, Byron Gaines and Harvey Miller left Magbie's house and headed toward 154th and Kinsman in Cleveland, Ohio where Harvey Miller's car was parked. Appellant was the last 5 individual to leave Magbie's house, and upon leaving, showed Magbie a gun which he had in his waist band. When appellant, Byron Gaines and Harvey Miller returned to Miller's vehicle, Miller proceeded to get into the driver's seat, Byron Gaines was in the front passenger seat and appellant was in the back seat of the car. While in the car, the three men were trying to decide where they could get some more drugs. After discussing the issue for a little while, Byron Gaines decided to get out of the car and he began walking back toward Magbie's house. (Tr. 388). As Gaines was walking, he heard noises which sounded like shots or firecrackers. (Tr. 390). Gaines turned around, looked back and saw Harvey Miller's car parked with its lights on. Gaines, however, did not see anyone at that time. Gaines turned around and continued to walk when he heard a thump noise, like a car door shutting. (Tr. 392). Gaines turned around again and saw appellant walking towards him. The two men then proceeded back to Magbie's house. After appellant, Byron Gaines and Harvey Miller left Magbie's house, Magbie heard about three or four shots coming from the Kinsman area. (Tr. 270). When appellant and Byron Gaines returned to Magbie's house, appellant said to Magbie that Harvey Miller would not bother him any more. (Tr. 273). Nothing further was said by appellant at that time. Later that evening, Detective Carlan Mayle responded to a call that a male had been shot between Kinsman and Hampstead on East 6 154th, Cleveland, Ohio. Upon arriving at the scene, Det. Mayle found Harvey Miller in the driver's seat of his vehicle shot to death. Det. Mayle also noticed that the passenger seat had been pushed up as though someone had exited from the back seat. It was later determined by the Scientific Investigation Unit that appellant's fingerprints were on the right side passenger door of Harvey Miller's vehicle. No other fingerprints lifted off of the car were identified. Harvey Miller sustained a number of gunshot wounds to the back of his head and it was determined during the autopsy of Harvey Miller that the cause of death was multiple gunshot wounds to the head and neck. III. In his first assignment of error, appellant contends that he has an absolute right to waive his right to counsel provided by both the United States and Ohio Constitutions and to proceed pro se.Thus, appellant asserts that the right to self-representation is a fundamental right enjoyed by all criminal defendants and the trial court erred in compelling him to accept a lawyer he did not want. In the case sub judice, appellant, prior to trial, made a request to the trial court to act as co-counsel during trial. The trial court granted appellant's request, but instructed appellant that he would only be permitted to ask questions that his defense counsel had not asked. 7 After the trial court granted appellant's request to act as co-counsel, appellant filed a motion with the trial court to dismiss both of his attorneys. (Tr. 43). The trial court overruled appellant's motion and reassured appellant that if there were any questions which his counsel was not asking, he would then be permitted to ask the questions. During trial, however, appellant failed to assert his right to ask any questions. In Faretta v. California (1975), 422 U.S. 806, the United States Supreme Court recognized a defendant's Sixth Amendment right to conduct his own defense. The Faretta court also held that a trial court may appoint standby counsel to assist the pro se defendant in his defense. McKaskle v. Wiggins (1984), 465 U.S. 168. A defendant's right to self-representation plainly encompasses certain specific rights to have his voice heard. Id. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire,to question witnesses, and to address the court and the jury at appropriate points in the trial. Id. at 174. In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way. Id. a 177. Faretta itself dealt with the defendant's affirmative right to participate, not with the limits on standby counsel's additional involvement. 8 In measuring standby counsel's involvement, it is important not to lose sight of the defendant's own conduct. McKaskle, supra at 182. A defendant can waive his Faretta rights. Id. A defendant's invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense. Id. A defendant who vehemently objects at the beginning of trial to standby counsel's very presence in the courtroom, may express quite different views as the trial progresses. McKaskle, supra 182. Even when he insists that he is not waiving his Faretta rights, a pro se defendant's solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably. Id. In the present case, appellant's motion to act as co-counsel was granted by the trial court. As co-counsel, the trial court told appellant that he would be able to ask questions that his trial counsel did not ask during examination of witnesses. Appellant subsequently objected to his trial counsel's presence. The trial court overruled appellant's objection and reaffirmed appellant's ability to be involved in trying the case. During the course of trial, appellant did not exercise his right to self- representation. Rather, appellant permitted both of his trial counsel to conduct the trial. Further, appellant, during the course of the trial, never asked one question to any of the witnesses presented by the State and when asked by the trial court 9 if he was going to testify on his own behalf, the following dialogue took place between the trial court and appellant: THE COURT: All right. Is it your desire not to take the witness stand? MR. BEVERLY: Well, I would like to discuss it with my attorneys, if I could have a little time. * * * THE COURT: Okay. All right. Now, have you discussed with your client, Mr. Russo, about his taking the witness stand? MR. RUSSO: Yes, your Honor. And he is not going to take the stand. THE COURT: All right. Mr. Beverly, do you understand that you can take the witness stand? MR. BEVERLY: Yes, sir. THE COURT: If you do not take the witness stand, no one can comment on that. What is your position on that? MR. BEVERLY: Well, I was debating about it, and thinking about it kind of hard. But based on the strength that you advised me correctly to maintain - - I mean, I got good advice that they have given me through the trial. I think I am not going to take the stand, sir. (Tr. 491-493). In essence, appellant, in failing to act as his own counsel, acquiesced to the participation of his trial counsel throughout the entire trial, therefore waiving his Faretta right to self- representation. Accordingly, appellant's first assignment of error is overruled. 10 IV. In his second assignment of error, appellant contends that his conviction for aggravated murder was not supported by sufficient evidence to prove his guilt beyond a reasonable doubt. Therefore, appellant asserts that his conviction must be reversed. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, syllabus at two. 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 a reasonable doubt. Id. Appellant, herein, was indicted on one count of aggravated murder in violation of R.C. 2903.01. R.C. 2903.01 states that [n]o person shall purposely, and with prior calculation and design, cause the death of another. Therefore, the essential elements of aggravated murder are that a person (1) purposefully, (2) with prior calculation and design, (3) causes the death of another. In the present case, appellant contends that because his conviction was based solely on circumstantial evidence, rather than on direct evidence, that there was not sufficient evidence presented to sustain his conviction. Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the 11 same standard of proof. Jenks, supra syllabus at one. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Id. The facts in the present case were sufficient to enable a jury to find appellant guilty of aggravated murder beyond a reasonable doubt. The record before this court demonstrates that appellant joined Byron Gaines sometime during the day on August 1, 1980. While appellant and Gaines were together that afternoon, Gaines observed a gun in appellant's car, picked up the gun and put it in his pocket. Later that evening the two men were joined by the decedent, Harvey Miller, and the three began searching for drugs. The search led them to Michael Magbie's house where they got high. Upon leaving Magbie's house, the evidence presented at trial shows that appellant showed Magbie a gun which he had around his waist and stated that mother_____ . After leaving Magbie's house, appellant, Byron Gaines and Harvey Miller went back to Miller's car to find more drugs. Miller was in the driver's seat, Gaines was in the passenger seat and appellant was in the back seat of Miller's vehicle. Gaines eventually exited the vehicle and proceeded to walk back to Magbie's house. As he was walking, Gaines heard something that sounded like gunshots, turned around, but saw only Miller's car with its headlights on. Gaines turned back around and continued to walk when he heard something like a car door slam. Gaines turned 12 around again and saw appellant walking towards him. Appellant and Gaines proceeded to walk back to Magbie's house. Prior to their return, Magbie testified that he had heard approximately three or four gunshots coming from the Kinsman area. After returning to Magbie's house, appellant, in a conversation with Magbie, stated mother_______ won't cross me no more. (Tr. 273). When the police arrived at the scene of the shooting, they found Harvey Miller dead as a result of gunshot wounds to the back of Miller's head and neck. The police further noted that the back seat of Miller's car had been pushed forward as though someone had tried to get out of the car. Appellant's fingerprints were found on the passenger side door of Miller's car. Based upon the above and all of the other evidence in the record, we find that there was sufficient evidence adduced at trial to convince the trier of fact that appellant was guilty beyond a reasonable doubt of aggravated murder. Therefore, we will not disturb this determination. Accordingly, this argument is without merit. Appellant's second assignment of error is overruled. V. In his third assignment of error, appellant asserts that he was denied his right to a fair trial before a jury that was free of outside influences by the introduction of gruesome photographs of the decedent. Appellant states that the probative value of the photographs was not outweighed by their prejudicial effect. 13 Under Evid.R. 403 and 611(A), the admission of photographic evidence is left to the discretion of the trial court. State v. Maurer(1984), 15 Ohio St.3d 239, 264. See also State v. Phillips (1995), 74 Ohio St.3d 72, 77. Accordingly, the trial court has broad discretion in the admission of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, a reviewing court should be slow to interfere. Maurer, supra at 265. In the present case, appellant objects to the introduction of three crime scene photographs due to the gruesome nature of the photographs. `Properly authenticated photographs, even if gruesome, are admissible if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number. State v. Frazier (1995), 73 Ohio St.3d 323, 333. Additionally, `relevant evidence, challenged as being outweighed by its prejudicial effects, should be viewed in a light most favorable to the proponent of the evidence, maximizing its probative value and minimizing any prejudicial effect to one opposing admission.' Id. citing Maurer, supra at 265. The photographs herein, numbering 1-D, 1-E and 1-I, were not repetitive or cumulative. These crime scene photographs were introduced during Michael Magbie's testimony to illustrate that Magbie could properly identify the victim as Harvey Miller. On 14 balance, we find that the probative value of the photographs substantially outweighs the danger of unfair prejudice to the appellant. Accordingly, appellant's third assignment of error is overruled. VI. In his fourth assignment of error, appellant asserts that he was denied his right to effective assistance of counsel. Appellant sets forth that his defense counsel were ineffective because they did not have adequate time to prepare a proper defense; appellant's counsel revealed privileged communications from appellant which prejudiced his motion for self-representation; and because appellant's defense counsel failed to preserve a viable issue for appellate review. Reversal of a conviction or sentence based upon ineffective assistance requires (a) deficient performance, `errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment ; and (b) prejudice, errors * * * so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' State v. Ballew (1996), 76 Ohio St.3d 244, 255; citing Strickland v. Washington (1984), 466 U.S. 668, 687. As to deficient performance, `a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' Id. at 256; citing Strickland, supra at 689. Appellant initially contends that his trial counsel were ineffective because the trial court failed to grant their motion to 15 continue the case. The trial court, upon consideration of appellant's motion, recognized that the appellant's trial counsel were assigned to the case in March, 1996, and had seven weeks to prepare a defense. In response to appellant's motion to continue, the trial court stated * * * in view of the background, and in view of the discovery, and in view of all the time that has elapsed, that the defendant has been afforded due process. Thus, the trial court overruled appellant's motion to continue. The question becomes whether the seven-week time period counsel had to prepare the case was insufficient to prepare an adequate defense and resulted in the denial of effective assistance of counsel. There is no specific time period that must elapse between employment of counsel and the commencement of a defendant's trial to insure effective assistance of counsel. State v. Yeager (January 3, 1985), Cuyahoga App. No. 48400, unreported, citing Avery v. Alabama (1940), 308 U.S. 444, 446. Delayed appointment or substitution of counsel is not per se a denial of effective assistance. Id. citing Price v. Perini (6th Cir. 1975), 520 F.2d 807. Therefore, before reversal can be justified for the reason asserted, appellant must show that his counsel was unable to render reasonably effective assistance in his case. Appellant has failed to do this. We have reviewed the record and find no trace of any lack of preparation on either counsel's part that constituted a violation of counsels' duties. The record shows that assigned counsel took 16 over the file from withdrawing counsel who had three months to prepare for trial. The record further shows that the trial court ordered complete and thorough discovery to be completed. Appellant's trial counsel were appointed on March 27, 1996, seven weeks prior to trial which was set for May 20, 1996. The facts and circumstances of this case do not demonstrate that appellant failed to receive adequate representation. Next, appellant asserts that he was denied the effective assistance of counsel when, during a pre-trial hearing, defense counsel informed the trial court that appellant had been to Fairhill Road Hospital on several occasions for psychiatric work- ups, but that he did not want a referral to the Psychiatric Clinic for an evaluation on competency. As a result of this disclosure, appellant asserts that the trial court denied his motion for self- representation. The record, does not support appellant's contention, nor does the record indicate that appellant suffered any prejudice which may have affected his substantial rights. Third, appellant states that he was denied effective assistance of counsel when his trial counsel failed to object to the trial court's admission of crime scene photographs into evidence. We find appellant's contention to be without merit. The record before this court reveals that appellant's defense counsel did, in fact, object to the trial court's admission of the crime scene photographs. (Tr. 279). Thus, although the trial court overruled appellant's objection, appellant's objection was 17 preserved for the record. With respect to appellant's contention that he was prejudiced because of the admission of gruesome photographs into evidence, we have previously found that prejudicial error did not exist. See Section V, supra. See also State v. Biros (1997), 78 Ohio St.3d 426, 455. We find that appellant has failed to meet his burden of establishing ineffective assistance of counsel under the standards set forth in Strickland, supra. Accordingly, we reject appellant's fourth assignment of error. VII. Appellant, in his fifth assignment of error, asserts that his conviction for aggravated murder was against the manifest weight of the evidence. Initially, we note that the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitativelydifferent. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. In particular, although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the manifest weight of the evidence. Id. citing State v. Robinson (1955), 162 Ohio St. 486. Weight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their 18 minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. Thompkins, supra at 387 citing Black's Law Dictionary (6 Ed. 1990) 1433. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Id. at 387, citing Tibbs v. Florida (1982), 457 U.S. 31, 42. The test for determining whether the conviction was against the manifest weight of the evidence was set forth by the Ohio Supreme Court in State v. Martin (1983), 20 Ohio App.3d 172, and states that [t]he 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. In the present case, a review of the entire record fails to persuade us that the trier of fact lost its way and created a manifest miscarriage of justice. Appellant was not convicted against the manifest weight of the evidence. Thus, we hold that 19 the appellant had a fair trial and that substantial justice was done. Accordingly, appellant's fifth assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. 20 It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J. and PATRICIA BLACKMON, J. CONCUR. __________________________ LEO M. SPELLACY Judge N.B. This 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(B) 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 .