COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71788 STATE OF OHIO : : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION EDWARD PARKS : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 16, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-341451C JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. NICOLE C. LONGINO, ESQ Cuyahoga County Prosecutor 12025 Shaker Blvd. #575 Cleveland, Ohio 44120 EDWARD M. WALSH, ESQ. KIMBERLY MAHANEY, ESQ. The Justice Center 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, P.J.: Defendant-appellant Edward Parks appeals from his jury conviction for involuntary manslaughter. The charges arose out of an incident in which a group of youths physically beat the victim, Richard Butler, to death. Defendant, who was seventeen years of age at the time of the offense, was originally charged in the juvenile court with delinquency for committing an act which, if committed by an adult, would constitute murder. The juvenile court bound the case over to the common pleas court for the trial of defendant as an adult. Defendant was thereafter indicted by the grand jury with four co-defendants for murder by purposely causing the death of the victim. Two co-defendants, Andrew Davis and Jarrod Robinson, pled guilty to lesser charges pursuant to a plea bargain, and the case proceeded to a joint jury trial against defendant and the remaining two co-defendants, Cory Shedwick and Zerick Byrd. The prosecution presented eighteen witnesses. The evidence revealed that on June 1, 1996, prior to a dance scheduled for later in the evening, a group of youths from the Cleveland Job Corps were gathered together drinking alcohol and socializing on the grounds of the Cleveland Museum of Art. The victim, who came by and was drinking a forty-ounce beer, joined in the conversation. Another Job Corps participant, Corenda McNeal, was talking about becoming a model in the future. The victim stated something to the effect that models give up pussy. -3- Defendant confronted the victim about showing disrespect to McNeal. Although there was evidence that the victim apologized, there was also evidence that the victim subsequently tried to punch another girl. An altercation erupted. Punching the victim in the face, defendant knocked him to the ground. Several members of the group tried to stop the three defendants as they continued to kick and punch the victim while he was on the ground. The group left to go to the dance while the trio continued the beating. All three defendants subsequently left, but the two co-defendants in the case at bar returned to the scene to continue the beating. Two passersby discovered the victim hours later, gurgling in his own blood. He died at the hospital shortly after. None of the defendants testified. Co-defendants Shedwick and Byrd each presented one witness. Defendant presented no witnesses. The jury acquitted all three defendants of the murder charge, but found them all guilty of the lesser charge of involuntary manslaughter. Through newly appointed appellate counsel, defendant appeals raising three assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT ERRED WHEN IT DID NOT GRANT THE DEFENSE MOTION FOR SEPARATE TRIAL. This assignment lacks merit. Defendant contends that the trial court erred by failing to order separate trials. He contends there was a negative spillover from sitting at trial with the other defendants and that he was deprived of the opportunity to call the other two defendants as witnesses. Defendant maintains he punched the victim only a -4- couple of times and that he was gone by the time the other two beat the victim to death. The record shows that defendant did not raise any of these arguments in the trial court. Crim.R. 8(B) specifically permits joinder of multiple defendants when all defendants are alleged to have participated in the same act, transaction, or series of acts or transactions. Crim.R. 14 recognizes defendant has the burden to show prejudice from joinder in one trial. Defendant, however, did not move for a separate trial and did not even join in the motion when co-defendant Byrd made it on his own behalf. Nor did defendant object when that motion was denied. Absent a timely pretrial request by defendant, a trial court has no duty to order a separate trial. State v. Gvozd (Jun 4, 1992), Cuyahoga App. No. 60748, unreported at 9; State v. Knight (1984), 20 Ohio App.3d 289, 291. Even when a timely pretrial motion has been made and denied, a defendant must renew the motion prior to the close of the case to preserve any claim of error on appeal. State v. Walker (1990), 66 Ohio App.3d 518, 522. The facts of this case do not establish plain error to overcome defendant's failure to object. First, defendant has failed to show any error. This court has previously held that there are good grounds to deny motions for separate trials in cases when the defendant acted in concert with the co-defendants to commit the crime and that the jury would be better able to weigh the testimony in a joint trial as in the case at bar. State v. Adams (Nov. 3, 1988), Cuyahoga App. No. 53908, unreported at 4. -5- Second, defendant has failed to show any prejudice. State v. Torres (1981), 66 Ohio St.2d 340, syllabus. This case involved only one charge with simple and direct proof. Defendant has not shown that any evidence introduced during the joint trial would have been inadmissible if he had been tried separately. Nor has defendant shown that any statement made to the police by his co- defendants and introduced into evidence had any tendency to incriminate him. Finally, the record shows that defendant did not even subpoena his two co-defendants to testify at trial. Under the circumstances, defendant has failed to show any prejudice or that the result of his trial would have been different had he been tried separately to establish a claim of plain error. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED WHEN IT PERMITTED THE STATE TO TREAT ITS OWN WITNESS AS HOSTILE WHEN THERE WAS NO FOUNDATION SHOWING HOSTILITY. This assignment lacks merit. Defendant contends that the trial court improperly called, as its own witness, a former co-defendant who pled guilty to reduced charges. Defendant complains specifically that the prosecution was permitted to ask Andrew Davis leading questions. Finally, defendant contends that this method of examination misled the jury because the prosecution made a plea bargain with Davis to testify. It has long been recognized, however, that trial courts have discretion to call witnesses to testify as long as the court -6- remains impartial and each side has an equal opportunity to cross- examine the witness. State v. Weind (1977), 50 Ohio St.2d 224, 235-236, vacated in part on other grounds, 438 U.S. 911; State v. Adams(1980), 62 Ohio St.2d 151, syllabus paragraph four; State v. Apanovitch(1987), 33 Ohio St.3d 19, 22. Evid.R. 614 specifically recognizes the trial court's authority in this context. The Ohio Supreme Court has specifically rejected defendant's precise contentions that this procedure improperly permits the prosecution to impeach its own witness and to ask leading questions of the witness. State v. Adams, supra. The trial court's determination to call a particular witness as a court witness will not be reversed on appeal absent an abuse of discretion. State v. Adams, supra at 157-58. To establish an abuse of discretion, defendant must show more than an error of law or judgment and that the trial court's action was unreasonable, arbitrary, or unconscionable. The mere fact that the witness' testimony had little probative value is not sufficient by itself to establish that the trial court abused its discretion. State v. Apanovitch, supra at 22. The record in this case unambiguously shows that none of the defendants raised any objection to the trial court calling Davis as its witness. In fact, each specifically stated he had no objection. (Tr. 509). Moreover, defendant's counsel never objected to the prosecution's use of leading questions. No one did until counsel for Shedwick objected in the middle of questioning. (Tr. 531). And then defendant's counsel merely challenged the -7- tone of the prosecution's questioning, which the trial court did not find offensive. Defendant does not cite any particular passages. What is evident from the cold transcript as we read it is not objectionable. The tone of the prosecutor's voice, however, we are unable to review. During cross-examination by defense counsel, defendant's counsel immediately referred to the witness' plea bargain conviction and the fact that he had not yet been sentenced. (Tr. 551). The claim that the jury was misled by the failure to disclose this information, therefore, is not supported by the record. State v. Apanovitch, supra at 22, n.2. Under the circumstances, defendant has failed to show that the trial court abused its discretion by calling Davis as a court witness or permitting the prosecution to conduct examination as it did. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: TRAIL [SIC] COURT ERRED AT PUBLICATION OF GORY PHOTO'S [SIC] DURING TRIAL. This assignment lacks merit. Defendant contends the trial court improperly admitted into evidence four crime scene photographs of the victim's corpse. Defendant concedes the challenged photographs were relevant and probative, but contends they should have been excluded under Evid.R. 403(a) because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice and their tendency to mislead the jury. -8- Although defendant made a general objection to the introduction of any photographs into evidence whatsoever, his argument on appeal refers solely to four photographs introduced into evidence at the close of the prosecution's case in chief. (Tr. 705). The photographs are small (3 / inches by 4 / inches) polaroid color photographs at the crime scene taken late in the evening. They depict the victim's nude body as discovered by the passersby. Exhibit 19 was taken from a distance and depicts the victim face down with his feet toward the foreground of the photograph and his clothes strewn over the ground. Exhibit 20 is a photograph from the opposite angle which depicts the victim's body and the left side of his bloody face. Exhibit 21 is a photograph of the victim's head and shoulders and reveals the left side of his bloody face and a small pool of blood on the ground beneath his nose. Finally, Exhibit 22 is a photograph of the victim's body on its back with the chest and face exposed and covered with a small amount of blood. It is well established that the admission of photographs is left to the sound discretion of the trial court. State v. Allen (1995), 73 Ohio St.3d 626, 636. The photographs in this case were not particularly shocking or gruesome and totalled only four in number compared to the sixteen photographs of the victim in Allen. As in Allen, the photographs reveal the nature and extent of the victim's injuries and the cause of his death. Defense counsel ameliorated the alleged tendency of the photographs to prejudice or mislead the jury by arguing that -9- defendant left the victim before the two co-defendants beat him to death so that defendant was not responsible for the extent of the injuries. Moreover, that the jury convicted defendant of the lesser charge of involuntary manslaughter rather than the charged offense of murder further dispels defendant's claim of unfair prejudice from viewing the photographs. Under the circumstances, defendant has failed to show that the trial court abused its discretion by admitting these photographs into evidence or that the probative value of the photographs was outweighed by their tendency to prejudice him unfairly or mislead the jury. Defendant's assignment of error also refers to the jury viewing various unspecified photographs during trial, but his brief does not make any particular argument that permitting the jury to view these photographs constituted error. Defendant's failure to object, moreover, to the display of the photographs at trial waives any claim of error. Id. at 635. To overcome this failure to object during trial, defendant has not argued plain error, nor does the record support such a claim. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. -10- 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 Common Pleas Court 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. McMONAGLE, J., and ROCCO, J., CONCUR. DIANE KARPINSKI PRESIDING 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 .