COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71396 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION TASMONE TAYLOR : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 29, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-338611 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: STEPHANIE TUBBS-JONES, ESQ. Cuyahoga County Prosecutor A. STEVEN DEVER, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CARMEN P. NASO, ESQ. 3700 Euclid Avenue, 2nd Floor Cleveland, Ohio 44115 PATRICIA ANN BLACKMON, A.J.: -2- Appellant Tasmone Taylor appeals his murder and aggravated robbery convictions and assigns the following errors for our review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE EYEWITNESS IDENTIFICATION OF APPELLANT TO BE ADMITTED AT TRIAL. II. THE TRIAL COURT VIOLATED TAYLOR'S SIXTH AMENDMENT RIGHT TO CONFRONT AN ADVERSE WITNESS AND COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED ADMISSION OF HUNT'S INCRIMINATING PRIOR STATEMENTS BECAUSE HUNT WAS NOT UNAVAILABLE UNDER RULE 804(A) AND HIS STATEMENTS LACKED THE REQUIRED INDICIA OF RELIABILITY TO OVERCOME TAYLOR'S CONSTITUTIONAL RIGHT. III. THE TRIAL COURT DENIED TAYLOR A FAIR TRIAL GUARANTEED TO HIM UNDER THE FOURTEENTH AMENDMENT BECAUSE THE PROSECUTION MADE UPON A POTENTIALLY EXCULPATING WITNESS IMPROPER THREATS OF PROLONGED INCARCERATION AND BASELESS CLAIMS THAT TAYLOR'S FAMILY HAD MADE DEATH THREATS AGAINST THE WITNESS. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE TESTIMONY OF ROBERT CRAYTON, A SOCIAL WORKER, TO CORROBORATE THE RELIABILITY OF THE CO-DEFENDANT'S STATEMENT. Having reviewed the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On September 12, 1994, seventeen year old Anthony Hunt murdered cashier Carol Tukes during a robbery of the 7-Eleven Store on Lakeshore Boulevard. Hunt confessed to the robbery-murder and named Tasmone Taylor, a juvenile, as his accomplice who was in the store with him at the time of the murder. He also named Eric Taylor, Tasmone's uncle, and Rod (aka) Maurice Keeler as -3- accompliceswho were waiting in the car at the time of the robbery-murder. Hunt first made his confession to his social worker, Robert Crayton, in the fall of 1995. Several months later, Hunt was arrested by the Ohio Highway Patrol and confessed to them that he and Taylor murdered Carol Tukes. The Highway Patrol contacted the Cleveland police, and on December 14, 1995, the investigating detectives met with Hunt and Crayton at Cuyahoga Hills Boys School. Crayton observed the ninety minute interrogation of Hunt by the Cleveland detectives and described Hunt as remorseful. Hunt again orally confessed to the robbery-murder and named Tasmone Taylor as his accomplice. On December 15, 1995, Hunt provided the police with a written confession. In that written confession, Hunt detailed the events of the September 12, 1994 murder of Carol Tukes. He stated he and Tasmone Taylor got into a car with Rod (aka) Maurice Keeler and Eric Taylor. They rode around drinking alcohol and smoking a reefer. Rod pulled a .380 caliber weapon. Rod (aka) Maurice Keeler and Eric Taylor began to taunt the juveniles about robbing a store. At random, they picked the 7-Eleven. Hunt and Tasmone Taylor entered the store, selected a pop, and went to the counter. Tasmone Taylor had the gun and handed it to Anthony Hunt. Tasmone Taylor went behind the counter and grabbed a bag. Simultaneously, Hunt put the gun in Carol Tukes' face and told her to give him the cash. She pushed the gun from her face thinking it was a toy. He told her to open the cash register and she started to scream. He -4- shot her and ran. They got into the car. They returned to the home of Ernestine Taylor (Tasmone's grandmother and Eric's mother) where Hunt burned the white hooded sweatshirt he wore during the crime. Hunt described Tasmone Taylor as wearing a knit Cleveland Browns cap. The Cleveland police investigating the robbery-murder obtained a store videotape of the incident, which showed two suspects, one in a white hooded sweatshirt and the other in a wool knit cap pulled over his face. From the videotape, the officers had the approximate size, weight, height, and color of the suspects. They also took a statement from Wendy Moore who was present during the robbery-murder. Prosecutor Steve Canfil decided to conduct a lineup to determine whether Moore could identify Taylor. Canfil asked detention home supervisor, Daniel Bruno, to obtain youths resembling Taylor to participate in the lineup. Ultimately, the lineup consisted of five black males including Taylor. Canfil later reviewed the lineup participants and exclaimed it's excellent. I haven't seen a better lineup. Canfil also contacted County Public Defender Bernard Johnson to represent Taylor at the lineup. After an hour had passed, Johnson appeared at the lineup facility along with two other members of his office. Since Juvenile Court does not have a special room for lineups, this one was held in the detention facility day room. Johnson and his associates entered the area of the day room where the five juveniles were waiting. -5- Johnson then informed Canfil that he was not going to allow the lineup to go forward and wanted substitution for the four males. Canfil stated Johnson started physically pulling the juveniles from the lineup. The situation was described as chaotic, at which point one of Johnson's associates started taking photographs of the juveniles. Detective O'Malley of the homicide unit felt the prosecutor should take photographs as well and asked the public defender for the use of their camera. The public defender agreed and the detective also took photographs. It was at this point that Detention Home Supervisor Daniel Bruno appeared, confiscated all of the photographs, and destroyed them. He reasoned that the photographs violated the Detention Center's protocol. The chaos continued until Canfil called Public Defender James Draper. After the call, the matter was settled and the lineup proceeded with the original five juveniles. During the lineup, Wendy Moore complained that the juveniles could see her. Paper was placed over the window to avoid the contact. She then viewed the juveniles and observed Tasmone Taylor fidgeting, lowering his head, and placing his hand over his face. She first stated she recognized Tasmone Taylor as one of the males in the store who killed the clerk. She then stated he looks familiar, but she wasn't sure. She stated he had the same height and weight. Both Anthony Hunt and Tasmone Taylor were bound over to adult court. They were indicted on one count of aggravated murder, aggravated robbery, and firearm specification. -6- The trial began with pretrial motions: a motion for the production of photographs (never ruled on because the photographs were shown to have been destroyed); motion to suppress Tasmone Taylor's statement (denied because the court believed the police ended their interrogation of Taylor when he invoked his Sixth Amendment right to counsel); and motion to suppress the eyewitness identification of Tasmone Taylor by Wendy Moore (the trial court denied this motion as well). The state called various witnesses during the pretrial motion hearing. Bruno testified that he and Detention Officer Derek Young handpicked the four male participants to stand in the lineup along with Tasmone Taylor. He testified he looked for males of similar size and appearance to Taylor's. Steven Canfil observed the males as well and concluded they matched Tasmone Taylor in size, height and weight. Canfil said when the five were brought into the anteroom, he had no idea who was who. Detective O'Malley pointed Taylor out to him. Thereafter, he heard Wendy Moore say that she recognized number one, who was Taylor. He elaborated on what she meant when she said he looked familiar. When asked if she was able to make a positive identification, he responded no, I wouldn't call it a positive identification. She said `he looks familiar but I can't be for sure.' Detective John Bonfeld, who was with Wendy Moore while waiting for the lineup, was not a part of the photograph chaos. He observed that Taylor was staring at Wendy Moore from where he was -7- positioned, which is why the paper was placed on the window. He testified Moore said my God, one of those guys is staring at me. She told Detective Bonfeld that number one looked familiar as being in the store. Public Defender Johnson testified that Canfil asked Wendy Moore if any of the young men in the lineup had the same features as the men in the store. Johnson testified that Moore responded number one. During the lineup, Wendy Moore never positively identified Taylor; she said he looked familiar. During the pretrial testimony the state asked the trial court to call Anthony Hunt as the court's witness under Evid.R. 614. The state questioned Hunt and he validated the statement that he shot and killed Carol Tukes in a robbery attempt. However, he recanted his confession regarding Taylor. He claimed others from the neighborhood were with him but not Taylor. After all the testimony was presented, the trial court denied the defense motion to suppress and exclude Wendy Moore's lineup identification and any in-court identification of Taylor. Thereafter, the defense asked the trial court for findings of fact and conclusions of law. The trial court responded thank you very much. OK, are we ready to proceed with the trial? The trial proceeded and at no time did the court issue findings of fact and conclusions of law on the motion to suppress Wendy Moore's out-of- court and in-court identifications of Taylor. Moore testified I never recognized anybody. This one person seemed more familiar. He was the same height and complexion or he -8- seemed more familiar to anybody else, you know. The prosecutor then stated familiar to the person in the store that night. She said he was the accomplice. She then was asked to make an in- court identification of Taylor, which she did. Subsequently, the state asked the court to call Hunt as a witness for the court. Hunt testified that he entered a guilty plea to the aggravated murder of Carol Tukes. He verified that he had made statements to the authorities about the murder and about Tasmone Taylor being his accomplice. However, when asked specifically about Taylor, he invoked his Fifth Amendment privilege against self-incrimination. The court noted that Hunt was invoking his Fifth Amendment privilege against self-incrimination and, without ordering him to testify, determined that he was unavailable under Evid.R. 804(a). During cross-examination by the defense, Hunt invoked the Fifth on several occasions but ultimately answered the questions. The defense elicited from him that he had lied about Taylor. He explained that he originally named Taylor to seek revenge. He also named the individuals who were with him during the killing and exculpated Taylor. The state called various other witnesses regarding the murder. Detectives Parkinson and O'Malley verified Hunt's statement to them about his and Taylor's role in the robbery-murder. Over the defense's objection, Detective Parkinson was allowed to read Hunt's written statement into the record before the jury. Detective -9- Parkinson was also asked if she was able to verify the names of the newly offered accomplices by Hunt during his voir dire. She said she could not; however, she was able to verify the names given in Hunt's written confession. Detective Andrew Charchenko testified that he determined the accomplice's body movements, shape, walk, posture, height and weight after viewing the store videotape. After observing Taylor in the courtroom, Charchenko opined that Taylor matched the profile of the accomplice. The state also called Crayton. Crayton testified that Hunt had confessed to him and named Taylor as his accomplice. He also witnessed Hunt's oral and written confession to Cleveland police. Crayton was asked a series of questions about his opinion as to the sincerity of Hunt's confession. However, he was not specifically asked what that opinion was. Thereafter, the state rested its case. Taylor called his grandmother, who testified that, on the day of the crime, she was home from work at 5:30 p.m. and that Tasmone Taylor was there when she arrived. She testified that Taylor was on in-house detention from juvenile court. She stated she usually is in bed sometime between 9:00 p.m. and 10:00 p.m. When she went to bed that night, Taylor was home. She also testified that her fireplace was a gas fireplace and clothes could not be burned in it. Finally, she testified that she had forbidden Hunt to come to her house. She warned him that Tasmone was on in-house arrest and she ultimately testified that she did want Hunt around. The -10- defense rested and the case was submitted to the jury. The jury found Taylor guilty of murder and aggravated robbery. They acquitted him on the gun specification. In his first assignment of error, Tasmone Taylor asserts the trial court erred in permitting Wendy Moore's eyewitness identification of him to be admitted at trial. In support of this assertion, he argues he was denied effective assistance of counsel at the pre-indictment lineup held at the juvenile court detention facility, and he argues the identification was insufficient, inadequate, and repudiated. Also, Tasmone Taylor argues the trial court after denying his motion to suppress the eyewitness identification failed to give him requested findings of fact and conclusions of law as mandated by Crim.R. 12(E). Tasmone Taylor's first assigned error lacks merit. Taylor was represented by counsel at the pre-indictment lineup. Not only was Public Defender Brian Johnson present, but he had two assistants with him. The right to counsel at a post- indictment pretrial confrontation procedure is sacrosanct. See U.S. v. Wade (1967), 388 U.S. 218, 221; Gilbert v. California (1967), 388 U.S. 263, 272. Assistant County Prosecutor Steven Canfil testified that they waited for over an hour and a half for Johnson to show. It was not until after he arrived that the lineup took place. Consequently, Tasmone Taylor's argument regarding lack of counsel is woefully disingenuous. -11- Tasmone Taylor argues besides having been denied the right to counsel, appellant was also denied the right to effective counsel. In order to be subjected to ineffective counsel, one must at least have counsel. To establish ineffective counsel, the defendant must show a deficient counsel and the prejudicial result thereof. Both elements must be established. Strickland v. Washington (1984), 466 U.S. 668. Tasmone Taylor argues his attorney was prevented from representing him. The record shows the attorney interfered with the lineup and not until his boss was called did he refrain from his recalcitrant behavior. The U.S. Supreme Court in Wade and Gilbert failed to set forth what the role of counsel would be at pretrial confrontations. Historically, courts have held that the role is one of observer, which involves taking notes and making a record. Consequently, we conclude Johnson was not ineffective. He was allowed to ask Wendy Moore if she recognized the male who was involved in the robbery-murder. Johnson was also allowed to photograph the lineup participants. Although the photographs were destroyed later by the detention staff, the prosecutor's office did not stop him from exercising his right to take the photographs. Johnson was not allowed to disrupt or interfere with the lineup. His behavior at that point reached beyond the boundaries of client representation. From what we can tell, his representation was not defective. Accordingly, we conclude Tasmone Taylor has failed to -12- establish the first prong of Strickland; consequently, it is unnecessary to discuss the second prong. Tasmone Taylor argues the eyewitness identification by Wendy Moore of him was insufficient, inadequate, and repudiated. The U.S. Supreme Court has held that suggestive identifications such as show ups are admissible, if reliable. Neil v. Biggers (1972), 409 U.S. 188, 196. Reliability is established under Biggers when the totality of circumstances establishes the length of time of exposure to the assailant by the victim; adequate lighting; personal nature of the crime; unlikelihood that others witnessed the crime; the more than ordinarily thorough description first offered by a victim; and the certainty expressed by the witness. Id. at 199, 200. It is clear from this record that Wendy Moore was not certain of her identification. In fact, she never positively identified Tasmone Taylor at the trial. At the pretrial motion hearing, she said he looked familiar. At trial, she repeated this refrain. However, she did point out for the state the person she felt looked familiar. Consequently, the question of her testimony was for the jury to weigh. Taylor argues her tenuous out-of-court identification would result in a very substantial likelihood of irreparable in-court misidentification, citingManson v. Brathwaite (1977), 432 U.S. 98. The issues in this case are not Manson issues. Here, the witness said the suspect looked familiar and she did not positively identify him at trial; unlike in Manson where the witness -13- identified one photograph at the station and positively identified the defendant in-court. The issue in these types of cases is the highly suggestive effect of the pretrial procedure on the in-court identification. Here, Taylor never raised the suggestiveness of the lineup. Additionally, we don't know if the pretrial lineup had any effect on Wendy Moore because she never positively identified Taylor in court. She continued her refrain that he looked familiar to her. Each time the state attempted to solicit an in-court identification the defense would object and the court would agree. Finally, she stated: I never recognized anybody. This one person seemed more familiar. He was the same height and complexion or he seemed more familiar to anybody else, you know. The state then remarked, familiar to the person in the store that night. She stated, he was the accomplice. The state then asked her, and do you see that man here in the courtroom today, the man that looked at that lineup back in February of this year? She identified Taylor. Taylor also argues he requested findings of fact and conclusions of law and the court failed to honor his request. In fact, the record shows the court did nothing on this issue. This court is mindful that Crim.R. 12(E) mandates a response on this issue and ordinarily this court would be in agreement in requiring the court to so comply. However, on this record we conclude the error is harmless. Wendy Moore never expressed certainty in her identification of Taylor. Her very testimony was that, during the robbery, she placed her hand over her eyes and prayed. There is -14- just nothing unnecessarily suggestive about her pretrial lineup or in-court identification of Taylor. The jury was in a position to decide the weight to be given her testimony. Consequently, we overrule Taylor's first assigned error. In his second assignment of error, Tasmone Taylor argues the trial court committed prejudicial error when it allowed the prior out-of-court confession of Anthony Hunt to be admitted into evidence after Hunt invoked his Fifth Amendment right to silence. Taylor argues Hunt was not unavailable as required under Evid.R. 804(a) and his confession lacked the required reliability. Additionally, he argues he was denied the right to confront Hunt. We disagree. The record in this case showed Anthony Hunt confessed orally and in writing to the robbery-murder of Carol Tukes and the 7- Eleven store. He named Tasmone Taylor as his accomplice. Hunt was first called as an Evid.R. 614 witness for the court at the request of the state during pretrial motion hearings. During this testimony, Hunt maintained that he committed the robbery-murder; however, he recanted his confession regarding Tasmone Taylor. The state was then allowed to impeach him with his prior oral and written out-of-court confession. During the trial before the jury, Hunt was called again as an Evid.R. 614 witness. This time he admitted to the robbery-murder but invoked the Fifth Amendment. The trial court failed to order him to testify before she decided he was unavailable for purposes of Evid.R. 804(a). However, the court did declare that Hunt was -15- unavailable. Once the court declared Hunt unavailable, the state was allowed to introduce his confession. During Hunt's pretrial testimony and his trial testimony, Tasmone Taylor was able to confront and cross-examine Hunt. Hunt, although invoking the Fifth, ultimately answered the questions. He stated that, in his confession to the police, he lied about Taylor being with him on the night of the murder. He explained that he lied to get back at Taylor for his grandmother banishing him from her house and stating he was a bad influence on Taylor. The state has offered Anthony Hunt's out-of-court written confession, which was not made under oath, as substantive evidence of the truth of the matters contained therein. It is no question that his written confession is hearsay. The question for us is whether it is admissible as an exception to the hearsay rule. The state wrongly argues that Hunt's written confession is not hearsay under Evid.R. 801(D)(1)(a). Evid.R. 801(D)(1)(a) provides a prior inconsistent statement given under oath and subject to cross-examination is admissible as substantive evidence and is not hearsay. The rationale for this rule is there is a highly circumstantial guarantee of truthworthiness because the witness is on the stand under oath and the subject to cross-examination. This was not the case here. The out-of-court confession was not under oath or subject to cross-examination. However, under Evid.R. 804(b)(3) the statement is admissible against Hunt's penal interest. -16- The out-of-court confession was against Hunt's interest. Evid.R. 804(b)(3) defines a statement against interest as a statement that at the time of its making *** so far tended to subject the declarant to civil or criminal liability *** that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. At the time Hunt made the out-of-court statement, he had not yet pleaded guilty to murdering Tukes and was subject to criminal liability. The language of Evid.R. 804(B)(3) makes clear that the potential for criminal liability must exist at the time the statement was made, not at the time it is offered into evidence. At the time the statements were made, police were investigating the Tukes murder. By his statements, Hunt implicated himself in the murder. The statements were clearly against Hunt's penal interest at the time they were made. The fact that Hunt had already pleaded guilty to murdering Tukes at the time the state introduced his statements at trial is irrelevant. Evid.R. 801(D)(1)(a) provides that statements against interest are exceptions to the hearsay rule if the declarant is unavailable as a witness. Under Evid.R. 804(A)(1), a witness is unavailable if he is exempt by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement. At trial, Hunt asserted his Fifth Amendment privilege against self-incrimination when asked if he lied in his statement to police. A witness' invocation of his Fifth Amendment rights has been repeatedly held to render the witness unavailable. See -17- State v. Gilliam (1994), 70 Ohio St.3d 17, 21; State v. Branham (1995), 104 Ohio App.3d 355, 358, appeal dismissed (1995), 74 Ohio St.3d 1444; State v. Long (May 8, 1997), Cuyahoga App. No. 70739, unreported, motion to file delayed appeal denied (1997), 80 Ohio St.3d 1421; State v. Dixon (March 13, 1997), Cuyahoga App. No. 68338, unreported, appeal dismissed (1997), 79 Ohio St.3d 1481; State v. Walker (June 6, 1996), Cuyahoga App. No. 69250, unreported, appeal dismissed (1996), 77 Ohio St.3d 1473. Taylor argues Hunt did not invoke his Fifth Amendment privilege in the face of a court order to testify. Taylor argues it was pure speculation that Hunt would have refused to testify in the face of an actual court order. Thus, Hunt was not unavailable, Taylor argues. The record shows that during the trial the state asked Hunt questions regarding his role in the robbery-murder to which he testified that he murdered Carol Tukes. When confronted with questions regarding Tasmone Taylor as his accomplice in the robbery-murder, Hunt invoked the Fifth. The prosecution then reminded Hunt that this judge was the same judge who was going to sentence him on a later date. The prosecution then set forth the penalty and informed Hunt he would be at least 60 years old before he would be released from prison. Both the defense and the state reminded the court that Hunt had already testified about Taylor. The state viewed Hunt as unavailable. The court thereafter made a finding that Hunt was unavailable. The court later corrected the record and stated Hunt -18- is unavailable with respect to the issues on which he has chosen to exercise his Fifth Amendment right. The defense proceeded to cross-examine Hunt. He invoked the Fifth but then answered the defense questions. He explained to the defense that he lied regarding Taylor's involvement. He then identified the males who were with him on the day in question as Greg, Kilo, and Dre. When asked about Taylor, he asked to confer with his lawyer and eventually answered the questions. The defense questioned him at length about the out-of-court confession. In response to the question did you see Tasmone Taylor that day, Hunt replied no. Based on this record, we conclude that even though Hunt was not ordered to testify by the court that the court had sufficient information before it to conclude that Hunt was unavailable as to any questions by the state. Consequently, the court's failure to actually order Hunt to testify, although the preferred practice, is harmless error in light of this record. Additionally,the fact that he had already pled guilty to the robbery-murder does not render invalid his invocation of his Fifth Amendment right. We recognize that he had pled; however, he had not been sentenced. He still faced perjury charges if he admitted that he lied to the court when he said his statement was true. He first said the statement was correct and then he said he lied when he included Taylor. This was sufficient for the trial court to entertain perjury charges. -19- Finally, Evid.R. 804(B)(3) requires admissibility of statements against interest when corroborating circumstances exist which clearly indicate the trustworthiness of the statements. [T]he determination of whether corroborating circumstances are sufficient to admit a statement against penal interest rests within the discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 114, certiorari denied (1991), 498 U.S. 1127; State v. Patterson (1996), 110 Ohio App.3d 264; State v. Metz (June 4, 1997), Washington App. No. 96CA03, unreported; Long, supra. There were sufficient corroborating circumstances to indicate the trustworthiness of Hunt's statements. Hunt's statements were made voluntarily after he was advised of his rights. No promises were made to Hunt in order to obtain the statement. Much of the information about the murder given in Hunt's statements was corroborated by the security video from the store where Tukes was killed. We conclude that Hunt's out-of-court statements were sufficiently corroborated to allow their admission. Because we conclude Hunt was unavailable at trial and that his out-of-court confession was against his interest as defined by Evid.R. 804(B)(3), we conclude his second assigned error lacks merit. In his third assignment of error, Tasmone Taylor argues the prosecutor's conduct and remarks denied him a fair trial. We disagree. The prosecutor's conduct during trial is not grounds for a reversal unless the defendant is denied a fair trial as a result of the conduct. State v. Apanovitch (1987), 33 Ohio St.3d 19; -20- State v. Depew (1988), 38 Ohio St.3d 275. The prosecution may strike hard blows. State v. Smith (1984), 14 Ohio St.3d 13, 14. Here, Taylor argues the prosecution insinuated that Hunt's former lawyers resigned from the case because Hunt had lied during the July 8th voir dire. Hunt testified on July 8th that his out- of-court confession as it related to Tasmone Taylor was a lie. Before this testimony, Hunt had pled guilty under the advice of these lawyers to the murder. Based upon these facts, it was fair comment for the prosecution to conclude that his lawyers withdrew because of the July 8th testimony. In any event, following the State v. Apanovitch standard, we cannot conclude that the prosecution's comment is misconduct, and even if it is we don't believe it resulted in Taylor not receiving a fair trial. Taylor also argues that Hunt changed his story naming Taylor as his accomplice when Taylor gave him a gang sign. The prosecution then stated it's hard to be a snitch. Again, this is fair comment. Finally, Taylor argues the prosecution accused Hunt of changing his testimony because of death threats from Taylor's family. Here, the prosecution asked Hunt questions as to whether he had been threatened to which Hunt said no. This is not the same as in State v. Smith where the prosecution's comments were during closing argument and the court felt the argument improper. These questions were proper in light of Hunt's recantation of his confession naming Taylor as his accomplice. -21- From this record, we conclude Taylor received a fair trial. Consequently, his third assigned error lacks merit. In his fourth assignment of error, Taylor asserts the trial court erred when it allowed Robert Crayton to corroborate the reliability of Hunt's confession. Taylor argues his conversation with Crayton was privileged and that the privilege was not waived. He also argues the question was an improper attempt to corroborate Hunt's trustworthiness. Robert Crayton was Anthony Hunt's social worker who spent a considerable amount of time with Hunt. Hunt first confessed to Crayton before he confessed to the Highway Patrol and ultimately the Cleveland detectives. Hunt clearly wanted to unburden himself of the murder of Carol Tukes. During the trial, Crayton was asked if he formed an opinion as to Hunt's veracity. He was never allowed to tell what that opinion was. Whatever the prosecution's goal, it was not accomplished. Besides, we have concluded in assignment of error two that the trustworthiness of Hunt's confession was established by other corroborating circumstances, i.e., Hunt's facing perjury charges. Evid.R. 804(B)(3) does not require corroborating evidence; it requires corroborating circumstances. Accordingly, Taylor's fourth assigned error lacks merit. Judgment affirmed. 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. KARPINSKI, J., CONCURS. TIMOTHY E. MCMONAGLE, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION.) PATRICIA ANN BLACKMON ADMINISTRATIVE 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71396 STATE OF OHIO : : PLAINTIFF-APPELLEE : v. : D I S S E N T I N G : TASMONE TAYLOR : O P I N I O N : DEFENDANT-APPELLANT : DATE: OCTOBER 29, 1998 TIMOTHY E. McMONAGLE, J., DISSENTING: I am compelled to respectfully but vigorously dissent from the opinion of the majority in which they today affirm the conviction of appellant Tasmone Taylor. A review of the record reflects that the evidence presented by the state at trial to support the appellant's conviction consisted solely of the testimony of the witness Wendy Moore that appellant looked familiar, and the two out-of-court statements made by appellant's co-defendant Anthony Hunt in which Hunt admitted to the murder of Carole Tukes and inculpated appellant. I find troubling many of the determinations made by the trial court of which appellant complains. I find troubling a voir dire procedure, by which the state intended to preserve the testimony of Anthony Hunt, which was conducted during the hearing on appellant's motion to suppress over objections of surprise by defense counsel. I find troubling the denial of appellant's motion to suppress the identification testimony of Wendy Moore entered by the court without the requested findings of fact as required by the Criminal -2- Rules, thereby precluding a specific factual review of the trial court's decision. I find troubling the admission, as substantive evidence of appellant's guilt, of both the out-of-court confession and the out-of-court statement of a co-defendant inculpating appellant without even a proper finding that Hunt was unavailable to testify and, further, without a finding that sufficient indicia of reliability existed to overcome the presumption of unreliability attendant in a co-defendant's confession. I find troubling the court's allowance of apparently privileged testimony of Anthony Hunt's social worker and substance abuse counselor which encompasses the circumstances surrounding the communications and treatment rendered his client without waiver as required by R.C. 2317.02. And, finally, I find troubling the court's allowance of a line of questioning directed to the substance abuse counselor which elicited the ultimate answer prohibited by the holding of State v. Boston (1989), 46 Ohio St.3d 108, the counselor's opinion of the witness' sincerity. While I am mindful that oftentimes, out of necessity, the trial court must make numerous on the spot rulings on unique evidentiary issues, nonetheless we must insist that rulings of the court conform with the rules of evidence and pass constitutional muster. Initially, I note that appellant moved the court to suppress the identification testimony. Appellant's motion to suppress was denied by the court without the requested Crim. R.12(E) findings. Our supreme court has found that when requested to do so a trial court must state its essential findings of fact on the record. -3- Bryan v. Knapp (1986), 21 Ohio St.3d 64. Although, in Bryan, the court addressed the failure of the lower court to issue findings of fact on the denial of a motion to discharge pursuant to the speedy trial statute, the interpretation of Crim.R. 12(E) applies to the court's decision on a motion to suppress evidence. State v. Almalik(1986), 31 Ohio App.3d 33. There is no doubt that factual issues were presented in the motion to suppress the identification in the instant case. Therefore, *** without the trial court's factual finding this court cannot `properly review the propriety of the trial court's ruling.' Id. at 34. Consequently, where, as here, factual issues were presented in the hearing on the motion to suppress, and the trial court failed to state on the record its essential factual findings when it overruled appellant's motion to suppress evidence upon appellant's timely request so that our court may properly review the trial court's ruling, the matter must be remanded to the trial court for such findings pursuant to the rule. However, despite this requirement which ensures that we properly review the propriety of the trial court's ruling, the majority asserts that this failure of the trial court was merely harmless. I find more troubling, however, the introduction into evidence of both the statement and the confession of appellant's co- defendant Anthony Hunt in which Hunt inculpates appellant for this murder. During opening statement, the prosecutor read the written confession; during Hunt's testimony, the prosecutor paraphrased Hunt's entire confession and read Hunt's December 14th statement into the record. Detective Parkinson during her direct examination -4- read both the confession and the statement into the record and both the statement and confession were admitted into evidence. At least five times during the trial the confessions of Anthony Hunt were presented to the jury wherein Anthony Hunt admitted he committed the murder and claimed his accomplice was appellant, Tasmone Taylor. However, at trial, Anthony Hunt testified that Tasmone Taylor was not his accomplice in the murder. The record reveals that throughout the trial, and in this appeal, various evolving theories were advanced by the state to permit the introduction of Anthony Hunt's two out-of-court statements into evidence. First, during trial when the witness, Anthony Hunt, invoked the Fifth Amendment privilege, the court found him unavailable to testify and permitted the state to read the statements into the record. Next, at the close of the state's case, over objection by defense counsel, the court admitted both the statement and confession into evidence as non-hearsay, finding in the state's argument the statements were prior consistent statements by a witness pursuant to Evid.R. 801(D)(1)(b) most persuasive. Finally, on appeal, the state urged this court to find that Anthony Hunt's statement and confession as admissible non-hearsay pursuant to Evid.R. 801(D)(1)(a) because they were the prior inconsistent statements of a witness. I find that none of the three evolving theories as advanced by the state have merit. The majority finds that the confession and statement of Anthony Hunt fall within the exception found in Evid.R. 804(B)(3) as statement against [penal] interest because the testimony of -5- Anthony Hunt was unavailable due to his invocation of the Fifth Amendment privilege. However, [w]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing that the witness is 'unavailable' and that the statement bears adequate `indicia of reliability.' Ohio v. Roberts(1980), 448 U.S. 56. Therefore, the questions before this court were whether by invoking the Fifth Amendment privilege while on the stand the declarant-witness Hunt became unavailable and, further, whether Hunt's statements should be admitted as sufficiently trustworthy. Evid.R. 804(A) lists five definitions providing the unavailability of a witness. Evid.R. 804(A)(1) relied upon by the majority provides that the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement. The burden of establishing unavailability rests on the party offering the evidence. State v. Gilliam (1994), 70 Ohio St.3d 17. A decision whether to admit the hearsay statement of an unavailable declarant is within the discretion of the trial court. State v. Sumlin (1994), 69 Ohio St.3d 105. At trial, the court ruled that Hunt asserted a Fifth Amendment privilege and, then, without making further finding regarding the trustworthiness of the out-of-court statement, the court permitted the introduction of the statement as exception to the hearsay rule. The exercise of the privilege not to testify renders the witness unavailable to the extent of the scope of the privilege. United States v. Mason (1969), 408 F.2d 903; United States v. Mobley -6- (1970), 421 F.2d 345. However, Hunt, having pled guilty to all the charges against him on July 5, 1996, could no longer incriminate himself at the trial on July 9, 1996. Further, at trial, Hunt at all times maintained his own guilt in the matter. Therefore, I would find that Hunt had no valid Fifth Amendment privilege to claim regarding a crime to which he has already pled guilty and to which he continued to proclaim his own guilt. United States v. MacCloskey(1982), 682 F.2d 468. Where the witness does not have a valid privilege, the witness is available at trial. United States v. Mathis (1977), 559 F.2d 294. I conclude that it was an error of law for the trial court to admit these hearsay statements into evidence over objection without a proper finding that Hunt was unavailable. Moreover, the court admitted the statement and confession without specifically finding that corroborating circumstances indicated that the statements bore adequate indicia of reliability as required by Roberts, supra. Although I agree with the majority that Hunt's statements were possibly sufficiently corroborated to indicate the trustworthiness of the statements regarding Hunt's own involvement, I do not find such corroboration as to show the trustworthiness of his statements which implicate appellant. Because I would find both the statement and confession of Anthony Hunt to be hearsay statements not fitting an exception within the rule and, therefore, improperly admitted at trial, the second prong of this court's analysis would require us to determine whether such error was harmless or prejudicial. See Davis, id. -7- Appellant contends that by this error he was denied his Sixth Amendment right to confront the witness against him. Because this alleged error is constitutional in nature, to determine whether the error was harmless, the entire record must be read, disregarding the objectionable materia, and a determination made whether there is remaining overwhelming evidence of appellant's guilt. Davis, id. My review of the entire record discloses that the evidence against appellant consisted of: (1) the weak identification testimony of the witness Wendy Moore indicating merely that appellant looked familiar to her, and (2) two out-of-court statements of co-defendant Anthony Hunt which inculpated appellant as Hunt's accomplice in the crime. When I review the record without Hunt's two out-of-court statements, which I find were placed into evidence in error, I cannot conclude that the evidence of appellant's guilt as presented at trial may be considered "overwhelming." Here, the identification evidence was not strong and the two extra-judicial statements of Anthony Hunt inculpating appellant were powerfully incriminating. Under these circum- stances, I would find the trial court's error in admitting co- defendant Hunt's out-of-court statement and confession denied appellant his Sixth Amendment right to confront the witness against him. Consequently, appellant was denied a fair trial. .