COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71749 STATE OF OHIO JOURNAL ENTRY AND OPINION Plaintiff-appellee vs. CORY SHEDWICK Defendant-appellant DATE OF ANNOUNCEMENT NOVEMBER 20, 1997 OF DECISION CHARACTER OF PROCEEDINGS Criminal appeal from Court of Common Pleas Case No. CR-341451 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. CATHERINE KISIL HAYES, ESQ. Cuyahoga County Prosecutor P.O. BOX 31 KIMBERLY MAHANEY, ESQ. NORTH OLMSTED, OH 44070 Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant Corey Shedwick ( defendant ) appeals the jury verdict finding him guilty of involuntary manslaughter, in violation of R.C. 2903.04(A). The record reveals that on the evening of June 1, 1996, a group of students were drinking alcoholic beverages near a pond close to the Cleveland Museum of Art in anticipation of a dance taking place that night. After a few hours of drinking and talking, Richard Butler ( victim ) who was sitting nearby, started a conversation with one of the female students. The victim proceeded to ask the female student whether she was a model because [m]odels give up pussy. . .how long have you been giving it up. This comment came to the attention of one of the male students who became irritated and told the victim that he can't be disrespecting his sister. An argument ensued between the victim and several of the male students. The victim eventually took a swing at one of the students. Thereinafter, the victim was struck and a brawl erupted. Defendant, Zerick Byrd, Edward Parks, and several others started beating the victim. As a result, the victim fell to the ground. A short time later, some of the students attempted to intervene to stop the fight but they were unsuccessful. Testimony given at trial indicated the victim tried to apologize while being beaten but to no avail. Parks was seen punching and kicking the victim in the head and Byrd was seen - 3 - holding the victim's head by the hair while he punched him in the face. Defendant also punched and kicked the victim. As the students were leaving the pond area for the dance, testimony regarding the victim's condition was disputed. Some testimony indicated the victim was dead while other testimony revealed the victim was talking and moving. Parks, Byrd, and defendant eventually caught up with the rest of the students on their way to the dance. However, one of the witnesses then heard Parks say he and defendant were going back to finish the job. Later that evening a couple was walking around the Art Museum and heard a gurgling noise. They walked towards the sound and saw a person lying face down, totally nude, and not moving. They called the police who had the victim rushed to the hospital, where he died two hours later as a result of blunt impacts to his head. The police arrested five individuals, two adults and three minors including defendant, and charged them with the murder of the victim. A probable cause and mandatory bindover hearing was held where the juvenile court found probable cause to believe defendant committed murder. As a result defendant lost his minority status and was bound over to the Court of Common Pleas to be tried as an adult. The case proceeded to trial and defendant was found guilty of the lesser charge of involuntary manslaughter, a felony of the first degree. He was then sentenced to a term of incarceration of ten to twenty-five years. Defendant filed a timely notice of appeal to this court and submits five assignments of error. In his first assignment of error defendant states as follows: - 4 - THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED ADMISSION OF DEFENDANTS' STATEMENTS OBTAINED IN VIOLATION OF DEFENDANT'S RIGHTS AS PROTECTED BY THE FOURTH, FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Defendant argues the trial court erred by allowing as evidence his admission and those of his co-defendants. These admissions were given by defendant and co-defendants on the night of the arrest during a police interrogation. Defendant claims the admissions were improperly admitted because at the time the admissions were taken defendant and co-defendants were minors, their parents were not present, and the waiver of their rights was not done voluntarily or knowingly. The state maintains defendant and co-defendants knowingly waived their rights after they were read their rights and were informed of the possible charges they faced. In addition, defendant was asked if he understood he was waiving his rights and whether he still wanted to make a statement. Defendant subsequently agreed to make a statement. Moreover, the state submits defendant's age, sixteen, and extensive juvenile record is evidence that he knew what a waiver of rights is. The Ohio Supreme Court has explicitly rejected the independent advice/interested adult standard which has been adopted in some states and requires both parents and children to waive a minor's constitutional rights before the minor makes a statement to the police. See In re Watson (1989), 47 Ohio St.3d 86, 89, certiorari denied (1990), 495 U.S. 937. Instead, when determining whether a juvenile's confession has been voluntarily - 5 - given, Ohio courts are to consider the following factors: the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. Id. at 89-90 In the present case, a Cleveland Police detective testified that defendant and co-defendants were initially put in one room and advised of their rights en masse. The detective stated he read all of them their rights and explained the rights to them and what their options were. He stated defendant and co-defendants were split up and re-advised of their rights individually. The detective stated statements were then taken from defendant and co- defendants. Another detective testified that defendant and co- defendants were read their rights three times: en masse, off a standardized card, and lastly off the written form provided for taking statements. Both detectives stated there were no inducements conveyed to defendant or co-defendants. Defendant was sixteen years old at the time his statement was taken. He is literate and there is no evidence in the record that he is mentally impaired. The police interrogation was short, approximately 35-40 minutes, and simply involved defendant explaining what happened while the detective composed the statement. The detectives stated defendant and co-defendants acknowledged they understood they were waiving their rights and - 6 - both signed the statement forms at the conclusion of the interrogations indicating they agreed with the statement. There is no evidence in the record which contradicts the detectives testimony and thus there is no evidence showing the statement was not voluntarily given. Therefore, based on the totality of the circumstances and taking into the consideration the factors listed in In re Watson, defendant's and co-defendant's statements were voluntarily given and properly admitted as evidence. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE PROSECUTOR'S MISCONDUCT VIOLATED MR. SHEDWICKS' RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. A. Defendant complains prosecutorial misconduct denied him his right to a fair trial. He bases this allegation on the prosecutor asking witnesses at the probable cause hearing leading questions. Defendant claims the prosecutor framed the questions in such a way that allowed the witnesses to simply affirm or deny a fact. Furthermore, defendant contends two of the witnesses were improperly treated as hostile witnesses when they did not testify in contradiction of their prior statements. Also, defendant argues the prosecutor knowingly allowed one of the witnesses to testify in direct contravention of a statement given earlier to the police. - 7 - The state counter-argues defendant was not denied a fair trial as a result of the prosecutor's actions. The state claims the witness defendant refers to as being treated as hostile was not a hostile witness but rather a court's witness called pursuant to Evid.R. 614. Moreover, after the witness testified defense counsel was asked if there was an objection and he responded no objection. Regarding the witness testifying in contradiction of an earlier statement, the state avers it is within the province of the trier of fact to believe or disbelieve the testimony of a witness. Defendant refers to five questions the prosecutor asked which he claims are leading. Three of the alleged leading questions merely asked a witness to identify defendant or co-defendants, who were sitting in the court at the time, as the people who participated in the assault. The fourth question concerned the length of the assault. These four questions were posed to an eyewitness to the assault. This witness was clearly able to identify those involved in the assault and the amount of time taken to beat the victim. The fifth instance of alleged leading questions were those directed to a co-defendant regarding his actions during the assault. None of these questions referred to defendant, and defense counsel objected more to the tone and manner of these questions rather than their leading nature. This is evidenced by the following passage, wherein, defense counsel argues in support of his objection to the prosecutor's questions: THE COURT: You object to leading questions? - 8 - MR. BRADLEY: I object to his leading questions and demeanor. THE COURT: You aren't saying that leading questions are wrong, per se? MR. BRADLEY: Not wrong, per se. THE COURT: Now, before I make a ruling on whether I will declare him a hostile witness, you make your argument and see if I shouldn't if comes up. MR. BRADLEY: Because I have his statement here in my hands and his testimony is consistent with his statement, but Mr. Walsh is questioning him in a manner and tone to inflame the jury. That's his sole purpose for raising his voice, and the young man is answering his questions exactly as did when he was a witness on the 3rd of June, 1996. In addition, defendant presents no evidence that he was prejudiced by these questions, he merely makes unsubstantiated allegations of prejudice. Defendant also alleges the prosecutor improperly treated a witness as a hostile witness. A review of the transcript reveals the witness defendant refers to as hostile was in fact called as a court's witness pursuant to Evid.R. 614. When the prosecutor requested that this witness be called pursuant to Evid.R. 614, defense counsel was asked if he objected and he stated no objection. Rule 614 allows the court to call a witness, and where the court calls a witness each party may cross-examine. State v. Apanovich (1987), 33 Ohio St.3d 19. In the present case, the prosecutor was not treating the witness at issue as a hostile witness but rather he was cross-examining the witness. A review of the transcript indicates defendant was not objecting to these questions because they were leading, as he now asserts, but instead he objected to the prosecutor's tone and manner. The trial court - 9 - recognized the witness was a Evid.R. 614 witness thereby allowing for cross-examination and stated I am not going restrain a lawyer on the way he handles his tone. This is not a stage. Again these questions referred to the actions of a co- defendant and did not even mention defendant. Defendant does not indicate how these questions prejudiced him. Likewise, we find no evidence defendant was prejudiced as a result of these questions. Lastly, defendant claims the prosecutor knowingly allowed a witness to testify in contradiction of an earlier written statement. This argument relates to the testimony of a witness who stated in a prior written statement to the police that more than three individuals were involved in assaulting the victim. Later, at the probable cause hearing, this same witness testified differently stating only three people, defendant and co-defendants, participated in the assault. Defendant contends the prosecutor was aware this witness was testifying in contradiction of her earlier statements and points to the fact that the prosecutor, in her opening statement, stated the victim was beaten to death by the three defendants. When the witness' police statement, given prior to trial, confirmed there were five assailants. In State v. Kimble (September 22, 1988), Cuyahoga App. No. 54154, unreported, this court stated: A prosecutor's knowing use of perjured testimony is a violation of due process and requires reversal of a criminal conviction if there is `any reasonable likelihood that the false testimony could have affected the judgment of the jury.' United States v. Agurs (1976), 427 U.S. 97, 103, citing Napue v. Illinois (1959), 360 U.S. 264, 271. See also Mooney v. Holohan (1935), 294 U.S. 103. To establish a violation, it is - 10 - sufficient to show that a prosecutor should have known of the perjury. Agurs, supra at 103. There is no evidence the prosecutor was aware this witness was going to state there were only three participants instead of five. Moreover, this witness was cross-examined by defense counsel who was given the opportunity to impeach her regarding her faulty memory, credibility, and inconsistent prior statements. Defendant attempts to hold the state responsible for any inconsistency by a witness. This is not the law. Inconsistencies separate from suborned perjury simply goes to the weight of the evidence. B. Next, defendant contends the prosecutor committed prejudicial error by raising issues which were unrelated to the present charges. Specifically, defendant complains the prosecutor attempted to associate him with gangs, improperly submitted a negative job status report, and improperly expressed his opinion that defendant hit the victim two times when defendant never even took the stand. Defendant bases this argument on the fact that evidence of prior acts may not be used to prove inference that, in committing the alleged crime, the defendant acted in conformity with his other acts or that he has a propensity to act in such a manner. State v. Smith (1990), 49 Ohio St.3d 137, 140. The state maintains defendant's gang-related criminal record provided a good faith basis to ask about his gang affiliation. The admission of the negative job report was proper because defense counsel opened the door in his opening statement when he said - 11 - defendant was never in trouble and obeyed the rules. Lastly, the prosecutor's opinion in his closing statement that defendant admitted hitting the victim was also proper because defendant admitted to hitting the victim in his written statement to the police. The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial. Apanovich, supra, at 24. To determine whether remarks made by a prosecutor constitute prejudicial error, a two step process must be undertaken. The court must decide first whether the remarks were improper and second, if so, whether they prejudicially affected the substantial rights of the appellant. State v. Martin (1986), 21 Ohio St.3d 91, 96. To determine prejudice, the effect of any misconduct must be considered in light of the whole record. State v. Durr (1991), 58 Ohio St.3d 86. The questions defendant complains of were those posed to Montell Odom, a witness for the defense. On cross-examination, Odom testified he knew defendant because they went to high school together in Chicago and they came to Cleveland together. The prosecutor asked Odom if he knew of a specific gang in Chicago and whether he or defendant was a member of that gang. Odom stated he heard of the gang but he was not a member of the gang and did not know if defendant was a member. Thereinafter, defense counsel objected and the court sustained the objection regarding this line of questioning. - 12 - Additionally, defendant complains a negative job status report was improperly admitted because it was evidence of other bad acts. The report was elicited on cross-examination of a supervisor of defendant. The supervisor testified that defendant overslept and was placed on a 7-day restriction to not leave the premises. Defendant also argues the prosecutor should not have stated defendant admitted to hitting the victim two times when defendant did not testify. The questions posed to Odom and stating defendant admitted to hitting the victim were neither improper nor did they prejudicially affect defendant's substantial rights. These questions simply asked whether defendant was in a gang and Odom testified he did not know. The prosecutor's statement that defendant admitted hitting the victim was proper based on defendant's written statement to the police where he stated he hit the victim twice. Regarding the job status report, there is nothing in the record indicating defendant suffered material prejudice as a result of its admission or that the trial court abused its discretion. Therefore, we will not reverse the trial court's decision to admit the report. State v. Sage (1987), 31 Ohio St.3d 173. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: MR. SHEDWICKS' RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. - 13 - Defendant argues the testimony of the state's key witness, Carla Smith, was biased, inconsistent, and an attempt to protect her friends. He bases this argument on Smith's trial testimony where she stated she did not know one of the assailants even though she was questioned earlier about the assailant at the probable cause hearing. The state contends defendant's argument is inaccurate. Smith's testimony was consistent regarding the assailant. She stated at the probable cause hearing that she did not know this assailant's name and she stated at trial that could not recall this person. Moreover, the state maintains Smith's testimony was consistent regarding defendant and his participation in this crime. The standard of review under Crim.R. 29 is sufficiency. State v. Lebron (1994), 97 Ohio App.3d 155, 158. A motion for a judgment of acquittal will not be granted if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. Id., quoting State v. Bridgeman (1978), 55 Ohio St.2d 261. In determining whether reasonable minds can differ, the evidence must be construed most strongly in favor of the prosecution. State v. Fyffe (1990), 67 Ohio App. 3d 608. In the present case defendant's argument is about the inconsistent testimony of one of the state's witnesses. However, this argument is without merit. Both at the probable cause hearing and at trial Smith testified she did not know this particular assailant. She stated she had seen him around school but did not - 14 - know him. Also, an argument about a witnesses' inconsistent testimony relates to the weight and credibility of testimony rather than sufficiency. Therefore, defendant's third assignment of error is overruled. Defendant's fourth and fifth assignments of error are interrelated and will be discussed together. They state as follows: MR. SHEDWICK WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. THE COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO GRANT CO-DEFENDANT'S MOTION FOR SEPARATE TRIALS IN VIOLATION OF DEFENDANT'S RIGHT OF CROSS-EXAMINATION SECURED BY THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT. Defendant argues trial counsel's failure to file a motion to suppress his statements and those of his co-defendants as well as a failure to file a pre-trial motion for severance amounts to ineffective assistance of counsel. Plus, he maintains the trial court committed prejudicial error by failing to grant co- defendant's motion for separate trials. The state counter-argues defendant has failed to meet his burden of proof in overcoming the presumption that trial counsel was not employing reasonable trial strategy. The state submits the motions defendant complains should have been filed by his counsel were filed by co-defendant's counsel and were properly overruled by the trial court. Thus, defendant suffered no prejudice as a result of his counsel not filing these motions. - 15 - Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Id., at paragraph three of the syllabus. As discussed earlier, the statements of defendant and co- defendants were voluntarily and knowingly given. The testimony of the police officers indicated defendant and co-defendants waived their rights against self-incrimination on three separate occasions rendering a motion to suppress such statements negligible. Additionally, in consideration of the voluminous eyewitness testimony presented by the state we do not believe the outcome of the trial would have been any different. Regarding the failure to file a motion to sever, joinder of defendants is proper as long as all defendants participated in the same series of transactions leading to the charges, even if they did not participate in every act and were not all charged in each count of the indictment. State v. Schiebel (1990), 55 Ohio St.3d 71, 88-89. In his brief defendant merely states no attempt was made to file a pre-trial motion for severance of defendants pursuant to Crim.R. 12(B), a mandatory pre-trial motion. - 16 - Without more and after a review of the record we are not convinced that trial counsel erred by failing to file a motion for severance in consideration of the fact that the crimes charged to defendant and co-defendants resulted from the same transaction. Moreover, counsel for one of the co-defendant's requested severance at trial and that request was denied by the trial court. One can assume that a denial of a motion for severance to one co-defendant would likely apply to similar motions for severance made by other co-defendants. Accordingly, the trial court did not abuse its discretion in failing to grant co-defendant's motion for severance. United States v. Reeves (C.A. 8, 1982), 674 F.2d 739, 744. Defendant's fourth and fifth assignments of error are overruled. Judgment affirmed. - 17 - 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 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. DYKE, J., CONCUR. .