COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71237 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) JAMES RIEKE ) ) Defendant-Appellant ) Date of Announcement of Decision AUGUST 14, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-334906 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES CAROLYN KAYE RANKE, ESQ. Cuyahoga County Prosecutor 1350 Illuminating Bldg. ANTHONY J. KELLON, Assistant 55 Public Square Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant James Rieke appeals from his convictions following a jury trial on three counts of felonious assault (R.C. 2903.11) arising out of an altercation outside a bar on New Year's Eve, 1995. Defendant contends he was entitled to a mistrial, a new trial and the convictions were against the manifest weight of the evidence. He also asserts the trial court failed to properly instruct the jury and that prosecutorial misconduct prevented a fair trial. We find no reversible error and affirm. The events leading to this prosecution occurred outside Porky's Bar on the west side of Cleveland on December 31, 1995, after defendant got into a fight with certain patrons who were dancing improperly with his girlfriend. The State presented four witnesses involved at the scene who all testified that defendant struck or swung at various patrons with a baseball bat. One of the victims testified that defendant struck her in the head with the bat causing her serious injury. James Johnson, an African American, testified that on the night in question he and a group of friends went to Porky's to celebrate the New Year. Johnson said that he was playing pool, had a couple of drinks and danced with a white woman, Kathleen Martin, who turned out to be defendant's girlfriend. Johnson testified that defendant approached him in an antagonistic manner about dancing with his girlfriend; the defendant and some other men barged him out of the bar, jumped on him, and chased him down the street. When Johnson returned to Porky's, defendant had a baseball 3 bat, and his friends were armed with pool cues. A general melee ensued. Johnson testified that at that point, he saw his cousin, Karen Tanker, had a busted lip, and then the defendant swung a bat at him, striking him in the arm. Wilbert Andel was working at Porky's as a doorman/bouncer that New Year's Eve. Andel testified in detail about how James Johnson and his friends came into Porky's that night and began to drink and dance like everyone else. The bar was packed or standing room only. Andel testified that James Johnson and one of his group were dancing with the defendant's girlfriend, Kathleen Martin, and another woman named Susan. The women came to Andel and told him that they did not like the way the men were dancing with them. They claimed the men were dancing too close in what was described as wall dancing, i.e., pinning the woman against the wall and touching her with his hands, for example, on her hips. Andel told the women not to go back on the dance floor if they had a problem. Finally, things began to get out of hand and Andel informed the defendant of the problem. Defendant, a friend of the owner of the bar, was an off the books or under the table employee of the tavern and was at one time officially employed as a bouncer. He was known by the other employees and regular patrons who frequented the bar. The defendant moved in and exchanged some harsh words with Johnson. Defendant told Johnson that the woman he was dancing with was his f------ girlfriend. The two exchanged I'm black and I'm Italian threats. 4 Andel testified that defendant, assisted by Andel and the other bouncer, escorted Johnson out of Porky's. Andel failed in his attempt to block other patrons from joining the fracas. He was soon caught up in the scuffle himself. He observed James Johnson go down, and was himself hit by a broken beer bottle thrown by a taller black female. At this point, Andel got a little irritated and hit one of the black guys who was jawing at him. Andel's attention was then called back inside the bar to quell a fight that had erupted there. However, beer bottles were thrown at the front door by the patrons outside. At this point, Andel and the defendant left the bar by a rear door and came around to the entrance. Andel was carrying a club or pool cue and defendant was brandishing a baseball bat. When they reached the front of the bar, Andel saw defendant swing the bat at one of the black males. Andel did not see defendant hit anyone with the bat. Soon, the police arrived and the thirty minute brawl was over. Andel did not see defendant hit Karen Tanker with the bat. Karen Tanker testified that she came to Porky's that night with her boyfriend, Iammett Johnson and their friends, including James Johnson. She ran outside to find her boyfriend, who was involved in the fight. It was then the defendant hit her in the face with a baseball bat. Tanker testified that the defendant swung the bat, hit her in the lip and caused serious injuries to her jaw and mouth which required medical attention and which continue to cause her pain. She identified defendant as her assailant. 5 Dexter Wright, also part of the Johnson group, testified that he was present during the melee and saw defendant hit his girlfriend, Karen Tanker, with a bat and use racial epithets. Wright testified that Karen Tanker was struck by defendant as they attempted to flee the scene. He was unable to protect his girlfriend as he was being attacked by Andel, who had a pool cue. Wright claimed the defendant also swung the bat at him, but did not hit him. Following the three jury verdicts finding defendant guilty of felonious assault against James Johnson, Tanker and Wright, defendant filed a motion for a new trial. The motion was supported by affidavits of Andel recanting his trial testimony that defendant had a bat and an affidavit by Chandra Salter who witnessed the episode and stated that she did not see defendant with a bat. Following a lengthy hearing at which both Andel and Salter testified, the trial court denied the motion for a new trial on the grounds Andel's recantation was not credible and Salter's testimony was only cumulative. (Tr. 616). Defendant was sentenced from three to ten years on each count to run concurrently. This timely appeal ensued. We will address the assignments of error in the order presented and together where it is appropriate for discussion. I. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR NEW TRIAL. Following the trial of the case at bar, a Crim.R. 33 motion for new trial was filed by defendant on the grounds that the testimony of the prosecution's key witness, Billy Andel, had been 6 recanted and an independent eye-witness, Chandra Salter, had been located whose testimony was not readily available at trial. Crim.R. 33(A)states in pertinent part as follows: RULE 33. New Trial (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial; (2) Misconduct of the jury, prosecuting attorney or the witness for the state; * * * (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. *** As a general rule, a motion for a new trial is granted where the defendant shows that he was unavoidably prevented from discovering the evidence which is the basis of the motion during the course of trial. State v. Gray (April 13, 1995), Cuyahoga App. No. 67574, unreported; State v. Pinkerman (1993), 88 Ohio App.3d 158. The evidence must have been the type that would have produced a different result at trial. Furthermore, the Ohio Supreme Court has held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong possibility that it will change the result if a new trial is granted, (2) has been discovered since trial, (3) is such as could 7 not in the exercise of due diligence have been discovered before trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach the former evidence. State v. Petro (1947), 148 Ohio St. 505. A motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of discretion connotes that the court's attitude was unreasonable, arbitrary and unconscionable. State v. Gray, supra; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Defendant maintains the affidavit of Andel recanting his trial testimony warrants a new trial. On the issue of whether recanted testimony warrants a new trial, it has been held: Where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court, whose action will not be set aside except for clear and manifest abuse. State v. Pirman (1994), 94 Ohio App.3d 203, citing State v. Curnutt (1948), 84 Ohio App. 101; Gray, supra; and State v. Walker (1995), 101 Ohio App.3d 433, 435. Newly discovered evidence which purportedly recants testimony given at trial is looked upon with the utmost suspicion. State v. Germany (Sept. 30, 1993), Cuyahoga App. No. 63568, unreported, 8 citing United States v. Lewis (C.A.6, 1964), 338 F.2d 137, 139, quoting United States v. Trouche (C.A.2, 1954), 213 F.2d 401, 403. Thus, a motion for a new trial should only be granted when the court is reasonably well satisfied that the testimony given by a material witness is false. Id. At the trial, the State's second witness, Billy Andel, a bouncer for Porky's and a friend of defendant, was actively involved in the episodes at issue. He testified that he saw defendant with a baseball bat in his hand; that because of the street lights, he was able to identify the object in defendant's hands as a wooden ball bat; and that he observed the defendant swing the baseball bat at a large black male. (Tr. 13-25). Andel's testimony was not impeached or impugned on cross- examination. His credibility was enhanced because he was testifying against his friend, the defendant. Subsequent to the guilty verdicts, Andel signed an affidavit which recanted his earlier testimony at trial as false. In his affidavit, he stated that he did not see the defendant swing the bat at any time during the altercation; and that he was not 100% certain whether the defendant actually possessed a baseball bat during the fray. At the oral hearing on the motion for new trial, Andel admitted under oath that his original trial testimony on this point was not true and that it had been coerced by the investigatingofficer, Cleveland Detective Maurice Hamilton. (Tr. 504-505). Upon rigorous cross-examination by the prosecution and the court, including admonitions as to the consequences of perjury, 9 Andel maintained that his trial testimony had been false relative to the defendant's possession or use of the bat. In reviewing the recantation of Andel, the court must determine the credibility of his testimony, both at and subsequent to trial, and its relationship to the outcome. As set forth in Toledo v. Easterling (1985), 26 Ohio App.3d 59, the court must determine: *** which of the contradictory testimonies of the recanting witness is credible and true and [whether] the recanted testimony would have materially affected the outcome of the trial. The evidence indicated that Andel himself was an original suspect in the investigation and he had a weapon (a pool stick) and, by his own admission, he struck some of the victims, including Karen Tanker. (Tr. 82-84). On recantation, Andel claimed it was his fear of possible prosecution and the intimidating and coercive manner of Det. Hamilton that forced him to give a statement against defendant to the police and to testify against him. There is no question but Andel's testimony was highlighted by the State in closing argument. For example, the prosecutor stated, Each and every witness for the State of Ohio was credible. *** Everything they testified to was corroborated and it was basically corroborated by Billy Andel. Billy had no reason to lie. *** He testified to the truth. (Tr. 429-30). Without a doubt, the testimony of Andel had an impact on the outcome of the trial and his subsequent recantation, if believed, raises questions about the reliability of the verdict absent his false testimony. The trial 10 court, however, did not find Ander's recanted testimony credible following the oral hearing and stated (Tr. 615): I do not find that believable. I do believe that Mr. Andel feels badly for Mr. Rieke, that he perhaps didn't expect that this matter would come to this point. And I conclude that he feels quite badly for himself and his reputation among his peers, who now rightly or wrongly believe that Mr. Andel's the one who opened the jail door for Mr. Rieke. So I can understand that he comes in here at this point and recants. Further, the conviction of defendant was based on two eyewitnesses who testified that defendant struck Karen Tanker in the face with a baseball bat. Other witnesses also testified that defendant was armed with the bat during the fight. On his motion for a new trial, the defendant also presented a newly discovered eye-witness, Chandra Salter, who did not testify at the original trial. As a patron of the bar on New Year's Eve, Ms. Salter observed the activities of the principals prior to the altercation and the entire disturbance which occurred outside. At the hearing on defendant's motion for new trial, Ms. Salter testified to her observations of the victims inside the bar and her concern over growing tensions; that members of the victims' group were agitating other patrons; that she observed the defendant escort a black male from the bar and witnessed the altercation outside; that during the entire altercation, she never witnessed the defendant hold or use a club or weapon. (Tr. 570-73). Ms. Salter also testified that she did not see Ms. Tanker get injured nor did she observe any other injuries sustained during the half hour melee. (Tr. 580). 11 The defendant did not offer any explanation as to why Ms. Salter's testimony could not have been obtained earlier or what due diligence was exercised to locate such a witness. Ms. Salter, a regular patron of Porky's, did not learn of the trial until she was recruited by a woman who was asking Porky's patrons if they were present at the bar on the night of the incident. Ms. Salter testified that she regularly went to Porky's, but that she was out of town for a couple of months. In any event, the trial court found her proffered testimony was merely cumulative and would not change the outcome. (Tr. 615-616). The principles of review we must apply were well stated in State v. Tijerina (1994), 99 Ohio App.3d 7, 11: Crim.R. 33 allows a trial court to entertain a motion for a new trial, and [t]he allowance of a motion for a new trial on the grounds of newly discovered evidence is within the competence and discretion of the trial judge; and in the absence of a clear showing of abuse such decision will not be disturbed. State v. Hill (1992), 64 Ohio St.3d 313, 333, 595 N.E.2d 884, 900, citing State v. Williams (1975), 43 Ohio St.2d 88, 72 O.O.2d 49, 330 N.E.2d 891, paragraph two of the syllabus. See, also, State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the syllabus ( A motion for new trial pursuant to Crim.R. 33[B] is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ). An abuse of discretion implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. State ex rel. Commercial Lovelace Motor Freight v. Lancaster (1986), 22 Ohio St.3d 191, 193, 22 OBR 275, 277, 489 N.E.2d 288, 290. Based on a careful review of the record and the new trial papers and hearing, we can not find that the trial court abused its 12 discretion in overruling the motion for new trial. Considerable latitude is entrusted to the trial judge because of his opportunity to judge the impact of the evidence, newly discovered or recanted, and place it in proper perspective. The issue is essentially one of credibility and that is entrusted to the trial judge. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR MISTRIAL AND IN FAILING TO ADEQUATELY INSTRUCT THE JURY ON IMPROPER TESTIMONY. III. THE REPEATED AND CUMULATIVE MISCONDUCT OF THE PROSECUTOR DENIED DEFENDANT A FAIR TRIAL AND MANDATES A REVERSAL OF THE CONVICTION. Defendant contends that the trial court should have granted a mistrial because of the admission of improper evidence and that the court failed to instruct the jury on improper evidence. We find no merit to these contentions. Defendant complains of the hearsay nature of testimony offered by Det. Maurice Hamilton. He claims Det. Hamilton repeatedly proffered testimony which was improper and non-responsive to the questions. Numerous objections were made by defense counsel and sustained by the court. (Tr. 264, 266, 260, 269, 270). Most of the testimony came out, in any event, during the course of trial and therefore any prejudice to defendant was muted. The principal contention is that Det. Hamilton volunteered a statement from defendant's girlfriend as follows: Q. Did Kathleen Martin tell you whether or not she was a witness to the incidents that occurred on that night? 13 A. Kathleen Martin denied actually seeing the assault, but stated that Jim overreacted. (Tr. 277). Defense counsel immediately objected to the statement and in a subsequent discussion at side bar, moved the court for a mistrial. (Tr. 278). The trial court denied the motion and directed the jury to disregard the statement thereby curing any defect. In any event, Kathleen Martin testified for the defense and her overreaction remark was the subject of direct and cross- examination. Where the hearsay is followed up in the testimony of the person giving the out-of-court statement, the hearsay is harmless. State v. Tomlinson (1986), 33 Ohio App.3d 278; State v. Keith(March 13, 1997), Cuyahoga App. No. 69267, unreported; State v. Bidinost (June 17, 1993), Cuyahoga App. No. 62925, unreported. In the case below, all the hearsay declarants testified at trial and were vigorously cross-examined as to their statements. Further, the declarants were present in court and were accorded the opportunity to deny having made the statements. Keith, supra; State v. Williams (1988), 38 Ohio St.3d 346, 350; State v. Sorrels (1991), 71 Ohio App.3d 162, 165. Defendant claims the unsolicited remarks and disregard for objections by Det. Hamilton were improper and highly prejudicial to the defendant. Defendant points out that the trial judge repeatedly sustained the objections, but the prejudicial content continued. Although the witness may have from time to time exceeded the boundaries of the questioning, we believe the trial 14 court correctly instructed the jury and sustained objections to his testimony. In a hotly contested case, as this was, there was bound to be zealous advocacy on both sides. We do not find it exceeded expectations or resulted in unfair prejudice to the defendant. That the prosecutor failed to control his witness and asked improper questions of Det. Hamilton on occasion only evidences the high feeling that ran through the case. We do not find that the prosecutor's conduct unfairly exceeded the bounds of zealous advocacy in a highly charged case with racial overtones. At the beginning of the trial, following an objection as to the use of out-of-court identifications of the defendant by photo array, the prosecutor agreed not to raise any such evidence in a discussion held without the jury. He stated, Your Honor, I'm willing to forego any mentioning of the photo array to avoid slowing this trial up. (Tr. 29). Despite this agreed stipulation, he subsequently questioned Det. Hamilton about his efforts to establish the defendant as a suspect. Q. And after you established this information, did you at any time compile a photo array for witnesses to *** A. To identify a suspect? The defendant's objection was sustained. (Tr. 282). A side bar was held. The question was improper and unprofessional, but the fleeting reference, to which no answer was given, can not be deemed prejudicial. In considering the issue of prosecutorial misconduct, based upon questioning of witnesses, this Court's explanation in State v. 15 Lucaj (May 17, 1990), Cuyahoga App, No. 56933, unreported, stated as follows: A prosecutor may not, by a question, assert the truth of an unproved allegation which is substantially harmful to a defendant and, upon receiving a negative reply, fail to produce evidence thereof. State v. Daugherty (1987), 41 Ohio App.3d 91. See State v. Liberatore, supra. It is unprofessional for a prosecutor to ask a question which implies the existence of a fact which he cannot support by evidence. State v. DePew, supra, at 289. Although we believe that these questions were unprofessional and improper, we cannot say that they denied the defendant a fair trial. During cross-examination, the prosecutor asked the defendant, in a heated exchange, You're no stranger to this court, are you? (Tr. 387). Subsequently, the prosecutor asked the defendant whether he had ever assaulted anyone before. Again, defense counsel objected to the improper attempt to impeach the defendant. (Tr. 390). The objections were properly sustained and the case moved on. The prosecutor knew that the defendant had no prior felony record which might be used properly for impeachment. The questions therefore lacked a good faith basis. Accordingly, this tactic constituted prosecutorial misconduct. See, also, State v. Ellis (1982), 8 Ohio App.3d 27, which held that, Even a misdemeanor assault conviction cannot be properly used for impeachment under Evidence Rule 609(A) . In cross-examination of defense witness Randall Sharp, the prosecutor asked if the witness had any alcohol the morning of trial. Following the witness's denial, the prosecutor continued to 16 improperly ask questions on this point, in an attempt to improperly discredit his testimony. Despite the objection by defendant and the sustaining of the objections, the prosecutor continued with this improper line of questions. (Tr. 405). Given these improprieties, we must apply the test regarding prosecutorial misconduct. It is whether the remarks were so improper that they prejudiced the substantial rights of the defendant. State v. Lott (1990), 51 Ohio St.3d 160; State v. Smith (1984), 14 Ohio St.3d 13. In making the latter determination, the court should consider the following factors: 1. nature of remarks; 2. whether an objection was made by counsel; 3. whether corrective instructions were given; and 4. the strength of the evidence. State v. Braxton (1995), 102 Ohio App.3d 28, 41. Reviewing these factors and the incidents presented in this case, the improper questions and remarks were repeatedly objected to by defense counsel. The court sustained the objections and ordered the jury to disregard. We find the prosecutorial misconduct such as it was did not prevent the defendant from receiving a fair trial. Assignments of Error II and III are overruled. IV. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to 17 consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: 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 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. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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. 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. ). Viewing the evidence in the light most favorable to the prosecution, we fail to find that the convictions were against the 18 manifest weight of the evidence. All three victims testified directly to the fact that defendant struck or swung a baseball bat at each of them. Ms. Tanker had a busted lip that required numerous stitches; her serious injury was not likely to have been inflicted by a mere slapping from her friends. James Johnson was struck in the arm while trying to ward off blows from the bat. Dexter Wright testified that defendant swung at him and missed. Given the frenzied nature of the fight, there were bound to be discrepancies arising from the excitement of the fray and the in- and-out nature of the witnesses participation. The credibility of the witnesses was for the jury to decide. It is not the province of this Court to determine credibility or resolve evidentiary conflicts. State v. Williams (1997), 79 Ohio St.3d 1, 10; State v. Waddy(1992), 62 Ohio St.3d 424, 430. The jury had the opportunity to hear and observe the testimony of each witness. There were clearly two sides of the story presented to the jury. It was up to the jurors to weigh the evidence and ascertain credibility. Their verdict was not against the manifest weight of the evidence. Assignment of Error IV is overruled. Judgment affirmed. 19 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. JAMES D. SWEENEY, C.J., and DYKE, 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 .