COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71008 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) VINCENT WRIGHT ) ) Defendant-Appellant ) Date of Announcement of Decision OCTOBER 2, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-331777 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES JAMES D. INGALLS, ESQ Cuyahoga County Prosecutor 2000 Standard Building A. STEVEN DEVER, Assistant 1370 Ontario Street THOMAS A. REIN, Assistant Cleveland, Ohio 44113 Prosecuting Attorneys Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant Vincent Wright appeals from his convictions following a jury trial for the lesser included offense of involuntary manslaughter (R.C. 2903.03) and aggravated robbery (R.C. 2911.01) both with firearm specifications. Defendant claims the trial court erred in admitting the hearsay declarations of a four-year-old child at the scene of the shooting and deprived defendant of his rights to a speedy trial. We find no reversible error and affirm. Defendant was originally charged with aggravated murder and robbery for his participation in the robbery and shooting death of Robin Kasper at a drive-up ATM at a National City Bank branch at 7101 Broadway in Cleveland on December 13, 1995. The State's evidence showed that Mrs. Kasper went to the bank with her four-year-old daughter, Celina, at about 8:00 p.m. to make a $100 withdrawal. After she made the withdrawal from her open car window, two black males from a car behind her accosted her and demanded the money. She was shot in her left shoulder through the open window. The events were portrayed on videotape from the bank's surveillance camera. Mrs. Kasper died from her wound at the scene, as the bullet traveled from her shoulder to her chest perforating her aorta and lungs. Cleveland Police Officer Donald Wellinger testified that he and his partner responded to the crime scene at about 8:22 p.m., where they found four-year-old Celina *** crying, hysterical, highly upset, shaking *** just very distraught and scared. (Tr. 3 233). A couple of people on the scene were trying to console her. When he asked Celina what happened, she told the officer that she and her mother were at the ATM machine and a black man approached the vehicle and asked her mother for her money; that the man choked her mother; and then shot her. The officer found a spent shell casing from a .25 caliber handgun in the back seat of Mrs. Kasper's vehicle. Maurice and Michelle Lambrix testified that they arrived at National City Bank around 8:00 p.m. and that they were nearly struck by a late model Ford LTD that was trying to exit the entrance of the bank. They said that they saw two black men in the car wearing black hats. The car then drove down an alley next to the bank. As the Lambrixs pulled up to the ATM machine next to Robin Kasper's car, they heard Celina screaming hysterically. After using the machine, Maurice Lambrix pulled his truck up next to Kasper's car, which blocked the bank's exit. He said at that time he saw the car he almost hit before pull in behind him. Another car with two women then pulled in to use the other machine further blocking the men in the car. He said the men in the car beeped and yelled at him. Michelle then ran to the car and told them to get help. At that point, although he did not actually witness it, the car with the two black males backed up into the car of the two women. The Lambrixs testified that the two other women from the other car helped get the child out of the car. Once they got the child out of the car, Michelle said that Celina continued screaming, 4 saying they were choking her. Maurice said the girl told them that they were choking her, that they were hurting mommy, that the black guys did it, that she gave them money and that they shot her ***. (Tr. 319). He then ran to the street where he waved down a limousine and asked the driver to get help. Lori Kawczynski and her friend, Christina DuPonte, arrived at the Bank around 8:05 p.m. to withdraw money from the ATM. Kawczynski testified that when she and DuPonte turned the corner at the bank, their vehicle was struck by a vehicle that backed into them. Kawczynski got out of the car, and asked the black male driver of the vehicle if he realized that he had hit their car. He told the females to move and stated, I need to go get f------ help. The lady is hurt. DuPonte then moved her car and Kawczynski walked up front to the ATM machine where she saw a lady was hurt and in a car. Kawczynski helped get Celina out of her mother's car and noted that Celina was crying, shaking and scared. When Kawczynski asked what was wrong, Celina told Kawczynski that, *** they choked my mommy *** they hurt my mommy *** they shot my mommy. Celina told Kawczynski that, *** they took my mommy's money. Kawczynski later gave the police a partial number of the license plate of the vehicle that struck them. She identified the defendant in court as being the driver of the car that struck them. Russell McGrath, 14 years old, testified that he was playing in the alley by the bank. He said around 8:00 p.m. he saw two guys drive down the alley which led to a dead end. The car then pulled into a driveway off of the alley and, while backing up, it hit a 5 telephone pole. He identified a photo of defendant's car as the car he saw. After the passenger asked McGrath if there was any damage to the car, the car drove off. Once he saw the commotion in front of the bank, he told the police officers what he saw. Cleveland Police Officer Saladin Sudberry testified that he and his partner arrived at the crime scene on December 13, 1995, and recovered a grey paint chip next to a telephone pole in the alley, which he turned over to a detective. This chip was later identified by the Coroner's trace expert as coming from defendant's Ford LTD. Jasper Bradley testified that he was traveling in his vehicle on Broadway Avenue heading downtown when a car containing two black males drove fast out of the bank entrance, almost striking Mr. Bradley's vehicle, causing both vehicles to quickly come to a halt. Bradley made eye contact with the driver of the vehicle and identified him in court as the defendant. Cleveland Police Officer David Pochate testified that he arrested the defendant on the day after the homicide, December 14, 1995. Earlier that day, Officer Pochate had received an information sheet at roll call giving a description of the vehicle, its partial license plate number and a description of two black suspects taken from bank photographs at the scene of the homicide. The photographs were also contained on the sheet. Around 6:30 p.m. that evening while driving eastbound on East 93rd Street, he observed the vehicle matching the description. He 6 called for back up and then pulled the defendant's car over. He then patted down and arrested the defendant. Sergeant Marvin Cross testified that he assisted in the arrest of the co-defendant, Jason Johnson on December 15, 1995. Johnson told Sgt. Cross where his gun was and Sgt. Cross found it in the living room under a mattress. The gun was loaded with six rounds. Cleveland Det. Garisek was the chief investigator and detective on this homicide. He received still photographs from the videotape at the bank displaying the sequence of events leading to the shooting. The bank records and video showed that defendant Vincent Wright was at the same National City branch and withdrew $10 from the same rear ATM at which he was parked one half hour before he shot Mrs. Kasper. (Tr. 248-252). Garisek then went on to describe the sequence of events leading up to the shooting of Robin Kasper. Once Robin obtained the money from the machine, the photos showed the defendant's upper torso in her car around 8:02 p.m. The next photo taken 31 seconds later show Robin slumped over, out of sight. Approximately six seconds later, defendant and co-defendant are seen returning to their car. After the defendant was under arrest, Det. Garisek read defendant his constitutional rights and took a statement from him. After denying any involvement, the defendant eventually, after being shown the bank photos, gave an oral and written statement to Det. Garisek implicating himself in the crime. The defendant's written statement, as read by Garisek, stated that co-defendant Johnson was the one who came up with the idea to rob someone at the 7 bank machine. Defendant stated Johnson gave him his gun and told him when to get out of the car to commit the robbery. The defendant stated he asked Mrs. Kasper for the money when the gun went off accidently, shooting her. She then gave him the money. He asked her if she was alright, but at Johnson's urging, got back in his car. (St. Ex. 43). Det. Tom Lucey from the Scientific Investigation Unit testified that he determined that Jason Johnson's gun, a .25 caliber semi-automatic Raven, was operable. He compared one of the bullets in the gun with the morgue bullet found in Robin Kasper and determined that they were both fired from the defendant's gun. Det. Lucey also testified about trigger pull and that the gun required five and one half to six pounds of pressure on the trigger before the gun will fire or discharge. The defendant testified that it was co-defendant Jason Johnson who planned the robbery and made defendant participate at gun- point; that defendant ended up with the gun; and that the gun accidently went off. Defendant's motion for acquittal was denied and the jury returned the verdicts on the lesser included offense of involuntary manslaughter and aggravated robbery, leading to this appeal. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM DURING HIS TRIAL AS GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. 8 II. THE TRIAL COURT ERRED IN ALLOWING HEARSAY TESTIMONY TO BE INTRODUCED UNDER THE OHIO RULES OF EVIDENCE HEARSAY EXCEPTION 803(1), (2) AND (4) DURING APPELLANT'S TRIAL. Defendant argues that the trial court impermissibly admitted hearsay testimony of the victim's four-year-old daughter, Celina Kasper. Specifically, defendant argues that his rights were violated by permitting four witnesses to testify to the daughter's hearsay statements that the defendant choked her mother, demanded money and shot her. Defendant contends that he was deprived of his right to confront the declarant; that there was no test of her competency and the statements did not qualify under hearsay exceptions. First, the defendant alleges that his Sixth Amendment right to confront the witnesses testifying against him was violated by the admission of the child's excited utterances. Defendant argues that the State never established that the child was unavailable before allowing her testimony. Evid.R. 803 holds: Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * * (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The Rule itself establishes that the availability of the declarant is immaterial. Further, the United States Supreme Court 9 has held that the confrontation clause does not require a showing that the declarant is unavailable before a trial court admits testimony under the excited utterance exception. White v. Illinois (1992), 502 U.S. 344, 356-357. The Ohio Supreme Court in State v. Wallace (1988), 37 Ohio St.3d 87, 93-94 also addressed the issue of competency and the excited utterance exception and held as follows: [I]t has long been the common law of Ohio that the testimonial incompetency of a child- declarant does not bar the admission of the child's declarations as excited utterances. [Cites omitted.] The overwhelming majority of jurisdictionswhich have considered this issue are in accord. *** [C]ompetency is in large part, inherently satisfied by the elements required to establish an excited utterance. *** To be competent, a witness must appreciate the duty to tell the truth and possess the ability to recall accurately. These requirements are not relevant to the admissibility of an excited utterance because an excited utterance is made while the declarant is dominated by the excitement of the event and before there is opportunity to reflect and fabricate statements relating to the event. *** Similarly, the declarant's ability to recall is not an issue because of the requirement that the declaration be contemporaneous with its exciting cause or made while that cause dominates the declarant's thoughts. The credibility and weight of the declarations will of course, still be judged by the fact finder. See, also, State v. Said (1994), 71 Ohio St.3d 473, 477, fn.1 ( As we noted in State v. Wallace *** the circumstances involving an excited utterance make that exception sui generis with respect to requiring competency of a child declarant. See, also, Boston, supra, 46 Ohio St.3d at 114. ); State v. Shoop (1993), 87 Ohio 10 App.3d 462, 471 (since child's statement was admissible as an excited utterance there was no need for the trial court to conduct an examination of the child prior to the admission of the out of court statement.) The defendant puts great weight on the Ohio Supreme Court's holding in State v. Storch (1993), 63 Ohio St.3d 280. Storch and its progeny dealt with confrontation in a child abuse setting. The Ohio Supreme Court clearly intended that the State follow a procedure to determine a child's availability to testify only in child abuse cases. Hence, the Court's reference to and reliance on Evid.R. 807. Evid.R. 807 governs the admissibility of a child's statement in a sex abuse case. We note that the terms of Evid.R. 807 limit its applicability to situations where the child makes statements about physical violence directed against the child, not about physical violence directed against others while the child was present. State v. Ulis (1993), 91 Ohio App.3d 656, 664. Here, defendant was charged with aggravated murder and aggravated robbery. The trial court was not required by Storch or any other case with which we are familiar to conduct an inquiry into the availability of the child to testify. As a result, no competency hearing under Crim.R. 22 and Evid.R. 601 was necessary as, under the excited utterance exception contained in Evid.R. 803(2), the child-declarant's availability was immaterial. Defendant in his second assignment of error continues to argue that Celina Kasper's hearsay statements were improper because they did not fit within the excited utterance exception. 11 The child's statements were authorized by exceptions to the hearsay rule under Evid.R. 803(2), the excited utterance exception: A statement relating to a startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition. As stated in State v. Simko (1994), 71 Ohio St.3d 483, 490, citing State v. Wallace, supra: The admission of a declaration as an excited utterance is not precluded by questioning which: * * * (2) Facilitates the declarant's expression of what is already the natural focus of the declarant's thoughts, and (3) Does not destroy the domination of the nervous excitement over the declarant's reflective facilities. See, also, State v. Johnson (1994), 71 Ohio St.3d 332, 338; State v. Justice (1994), 92 Ohio App.3d 740, 747. In this case, the four-year-old child's statements were all made while she was still under the influence of a traumatic event. The child's exclamations within 20 minutes after witnessing the choking and murder of her mother while she was sitting next to her in the car, fit within classic examples of excited utterances. All the witnesses testifying to the child's statements indicated that the child was hysterical, shaking, screaming and distraught while making the statements. To contend they were the product of reflective analysis is without merit. In any event, the statements of the child, even if improperly admitted, were harmless error. In order to hold error harmless, 12 the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; State v. Lytle (1976), 48 Ohio St.2d 391. A reviewing court may overlook an error where the admissible evidence comprises overwhelming proof of a defendant's guilt. State v. Williams (1983), 6 Ohio St.3d 281, 290. When a claim of harmless error is raised, the appellate court must read the record and decide the probable impact of the error on the minds of the average jury. Harrington v. California (1974), 395 U.S. 250, 254. In Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, the United States Supreme Court wrote: The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, *** and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. See, also, Jackson v. Howell (1993), 86 Ohio App.3d 497, 501; State v. Adams (1991), 74 Ohio App.3d 140, 145. The child's declarations at best were cumulative and non- prejudicial. There was no question that her mother was shot to death in the course of a robbery by the two black defendants as the bank's surveillance camera evidenced and as the defendant himself admitted when he took the stand. Furthermore, the overwhelming nature of the other evidence against defendant clearly established his guilt beyond a reasonable doubt. The jury heard the testimony of numerous witnesses tying 13 defendant to the crimes both by his direct admissions, direct testimony as to his flight from the scene, and compelling circumstantial evidence which is as probative as direct evidence. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph one of the syllabus. It is extemely unlikely that the evidence of which defendant complains in these assignments of error contributed materially to defendant's convictions. Any claimed error was harmless beyond a reasonable doubt. Assignments of Error I and II are overruled. 14 III. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND HIS STATUTORY RIGHT TO A SPEEDY TRIAL UNDER OHIO REVISED CODE S2945.71 ET SEQ. Defendant argues that his rights to a speedy trial were violated because his attorney requested a continuance on the trial date to obtain further discovery. Defendant claims that the prosecutor circumvented its duty to bring the accused to trial within the proscribed time because he only disclosed additional witnesses and evidence on the day originally set for trial. Pursuant to R.C. 2945.73(B), the defendant must make a motion prior to the commencement of trial raising any speedy trial violations. This provision states: (B) Upon motion made at or prior to the commencement of trial a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections R.C. 2945.71 and 2945.72 of the Revised Code. It is the motion that triggers the prosecutor's duty to produce the evidence negating the defendant's assertion that his speedy trial rights have been violated. State v. Thompson (1994), 97 Ohio App.3d 183, 186. In the case herein, no such motion was made prior to or at the commencement of trial. In fact, a review of the record shows that defendant waived his right to a speedy trial in writing two times. The first time was on January 2, 1996 when he waived his right in writing until April 16, 1996. The second time was on April 16, 1996 when he moved for a continuance to May 6, 1996 to address new discovery matters. His trial 15 actually commenced on May 6, 1996. Since this issue was never raised in the court below, defendant cannot raise such an argument on direct appeal as this Court is only able to consider arguments properly raised before the trial court. State v. Thompson, supra at 187; Worthington v. Ogilby (1982), 8 Ohio App.3d 25, 27. We also, however, fail to find any plain error here. As stated above, the defendant waived his speedy trial rights all the way until the time his trial actually commenced on May 6, 1996. Furthermore, there has been no evidence presented that there was a discovery violation pursuant to Crim.R. 16 or that the prosecuting attorney did anything that could be construed as a circumvention of its duty to bring the accused to trial as defendant contends. The record merely states that the defendant's attorney requested a continuance. Since the defendant requested that the trial be continued, it cannot be argued that the defendant's speedy trial rights were violated. Continuances granted at defendant's request toll the speedy trial time. R.C. 2945.72(H); State v. Fields (1994), 97 Ohio App.3d 337, 350; State v. Barker, supra at 530; State v. Howard (1992), 79 Ohio App.3d 705, 708; State v. Collura (1991), 72 Ohio App.3d 364, 369. Nor do we find merit to defendant's argument that the April 16 motion to continue was not journalized until April 22, 1996. Since his motion for a continuance was pending in the interim, R.C. 2945.72(H) is still applicable. Assignment of Error III is overruled. Judgment affirmed. 16 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 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. BLACKMON, P.J., and DAVID T. MATIA, J., CONCUR JAMES M. PORTER 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 .