COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71644 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ANTHONY LEMONS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 15, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-323266 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Mark J. Mahoney Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Daniel Abrams 2436 Elmdale Road University Heights, Ohio 44118 -2- NAHRA, P.J.: Appellant, Anthony Lemons, appeals his convictions of murder and attempted murder each with a firearm specification. The body of Eric Sims was discovered on April 14, 1994, at 1875 Cliffview, Apt. #203, in Cleveland. The coroner's report indicated that the victim died within 24 to 72 hours of examination or no earlier than April 11, 1994. On January 5, 1995, almost nine months after the murder, Jude Adamcik made a statement to the police implicating the appellant, Anthony Lemons. In that statement Ms. Adamcik indicated that the murder took place on April 4, 1994. On May 10, 1995, the defendant was indicted with the date of the offenses set forth as April 14,1994. The appellant filed a motion for discovery on May 25, 1995, to which the State responded on June 29, 1995, including a Bill of Particulars. Included in this Bill of Particulars was the alleged approximate date of the murder, between April 8, 1994, and April 13, 1994. On July 12, 1995, the appellant filed his Motion to Examine Exculpatory and Mitigatory Material. On August 10, 1995, A Motion for Disclosure of Grand Jury Testimony was filed. This Motion was denied by the trial court. On August 18, 1995, appellant filed a Motion for an In-Camera Inspection of the Record to Determine the Existence of Exculpatory and Mitigatory Material. A hearing on this motion was conducted on September 6, 1995. Upon full examination by the trial court of the police reports and the written statements which were in the -3- possession of the prosecuting attorney, the motion was denied. It was the opinion of the trial court that nothing in the record would aid the appellant in his defense, and as a result, no disclosure was necessary. Trial was set for October 5, 1995. At trial, the prosecution presented seven witnesses. Wilbur Sims, the brother of the victim, stated that he became alarmed as to his brother's whereabouts when he had not heard from him in ten days to two weeks. Subsequently, he went over to 1875 Cliffview Manor, Apt. #203, to check on him. After receiving no response at the door, Wilbur contacted the custodian to open the door. Once in the apartment, Wilbur saw his brother slumped over the table next to the couch, apparently shot to death. Wilbur also testified that although he had never seen his brother use drugs, he suspected him to be a user. Michael Rodgers, a Cleveland police officer, stated that he responded to a call for a dead body, probably natural, at Eric Sims' apartment. Upon arrival, he met with fire and EMS personnel and was informed that the matter might involve a homicide. Rodgers then secured the crime scene and notified the Homicide Unit of the Cleveland Police Department. Rodgers went on to identify the photographs taken of the crime scene, which were admitted into evidence. He also authenticated a crime scene sketch, as well as two spent .25 caliber shell casings, as being those found by him in the victim's apartment. Dr. Robert Challener testified that the victim sustained two gunshot wounds; one was in the left chest, while the other was -4- found in the back of the victim's head at the junction of the head and neck. This second wound caused extensive destruction to the victim's brain stem and was immediately fatal. During autopsy, Dr. Challener recovered two .25 caliber pellets from the victim which were admitted into evidence. He further noted that the victim had trace amounts of alcohol in his blood and cocaine in his urine. The significance, according to Challener, is that Eric Sims had ingested cocaine within eight hours of his death. He was able to ascertain this because the cocaine had been metabolized by his body, and was ready to be eliminated. After weighing all variables used to determine the approximate time of death, it was Challener's opinion that Eric Sims had been dead approximately 24 to 72 hours upon discovery. On cross-examination, Challener specified that since the body had been discovered on April 14, 1994, the date of death would be between the 11th and 13th of April. Detective Samuel Reese identified a photocopy of a crime scene drawing he made in connection with the murder of Sims. He further authenticated and identified the crime scene photos, and the two .25 caliber spent casings seized at the murder scene. Detective Kovach testified that from April, 1994, to October, 1994, the investigation of the murder of Eric Sims yielded no meaningful information. However, in October, and again in November of 1994, Kovach received anonymous tips which led to and included a license plate number. Running the plate number resulted in Kovach learning that the car belonged to John Thompson of Euclid. -5- On January 5, 1995, after several failed attempts to reach Thompson by phone, Kovach reached a potential witness, Jude Adamcik. That same day, Kovach drove to Euclid, picked up Adamcik and returned to the Homicide Unit where he recorded her written statement. This was labeled as an exhibit, but not admitted into evidence. In that statement Adamcik identified the shooter as a male by the name of Tone . The detective diligently perused the police files and put together a photo lineup of six individuals known to use the nickname Tone . On January 9, 1995, this photo lineup was shown to Adamcik, and Adamcik was able to identify the appellant, Anthony Lemons, as the person who shot and killed Eric Sims. After many attempts to arrest appellant, including a failed surrender on Mr. Lemons' part, appellant was arrested on April 26, 1995. Ms. Adamcik was asked to view a lineup, and unequivocally identified the appellant as the perpetrator. Detective Robert Minor, of the Cleveland Police Department Scientific Investigation Unit, testified that on January 8, 1995, during the investigation, and prior to the arrest, he was dispatched back to the original crime scene to verify another part of Ms. Adamcik's story. Adamcik had claimed that appellant had shot at her just after killing Sims, and that a bullet should be lodged in the wall of the apartment. Upon arriving at the scene, Minor took three photos of a hole located on the rear wall near a closet. These pictures were entered into evidence. Significantly, Minor also stated that he was able to locate the same suspected -6- bullet hole in an original crime scene photo. However, no bullet was ever recovered. Jude Adamcik testified that she was an eyewitness to the murder of Eric Sims. She related that on April 4, 1994, she went out with her boyfriend, John Thompson, to the Ground Round Restaurant. After dinner, at approximately 10:00 p.m., she was dropped off at the corner of Mayfield and Green, so that her boyfriend would not know where she was now living. In the past he had been abusive. In order to get to her home, she proceeded to hitchhike. Harold Salters, a friend of Ms. Adamcik, stopped and offered her a ride. Also in Harold's car was a man she did not know. On the way home, Salters indicated to Adamcik that they had to make a stop at Cliffview Manor. Once at Cliffview, Adamcik waited in the car as Harold and the unidentified man went into the building. However, Adamcik developed a need to go to the bathroom, so she entered the apartment building and proceeded to the apartment from which she heard her friend Harold's voice. Ms. Adamcik entered the apartment, a one room apartment with a kitchen and a bath, and saw four men: Harold Salters, the man with Harold, Mr. Sims, and Lemons. She was introduced to Lemons by Harold who identified the appellant as Tone . As Adamcik entered the apartment she indicated that the appellant, and the three other men were engaged in a drug transaction. She identified Lemons as the person who was dealing the drugs. She then entered the bathroom to use the facilities. -7- While in the bathroom, appellant opened the door and told Adamcik that her friends had left, and that he had given them drugs in return for sexual favors to be performed by her. Specifically, appellant told Ms. Adamcik to perform oral sex. Feeling she had no choice, she began to do as requested. While she and appellant were so engaged, Sims began forcefully knocking on the bathroom door stating that he wanted some drugs, and his rent payment for the use of his apartment to perform the drug transaction. Appellant quickly became irritated, pulled up his pants and exited the bathroom. Lemons began yelling at the victim and bitch slapping him. Lemons then pulled out a gun and shot Sims once. Approximately, ten seconds later, appellant shot Sims again. Lemons then turned his attention to Adamcik. He fired one shot as Adamcik dove to the floor. Adamcik laid on the floor, to play dead, and did not move for a short period of time. Upon getting up, she noticed Sims slumped across the arm of the couch and proceeded to check for a pulse. Realizing he was dead, and fearing for her safety, Adamcik wiped the apartment clean of her fingerprints and left. She told her boyfriend what had happened, afraid to notify the authorities, and subsequently decided it would be safer not to get involved. Upon being contacted by the police, she related the events of the evening and participated in both the photo lineup, and an in person lineup. On each occasion, she identified appellant as the shooter. -8- At the close of the State's case, the defense rested. The jury returned a verdict of guilty on all counts. Appellant assigns three errors for our review. I. Appellant's first assignment of error states: I. WHETHER THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING DEFENDANT THE DISCOVERY AND USE OF EXCULPATORY INFORMATION THAT WAS MATERIAL TO GUILT UNDER BRADY V. MARYLAND. Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, established that the prosecution's failure to disclose evidence favorable to the accused upon request constitutes a violation of the Fourteenth Amendment's due process guarantee of a fair trial when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id.; see, also, State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898. This opinion was incorporated into Ohio's Crim.R. 16(B)(1)(f), which provides [u]pon motion of the defendant before trial the court shall order the prosecuting attorney to disclose to counsel for the defendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material to guilt or punishment. Undisclosed evidence is material for the purposes of Brady, only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome. United States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 3383; see, -9- also, State v. Wickline (1990), 50 Ohio St.3d 114, 552 N.E.2d 913. The defense carries the burden of proving a Brady violation and thereby a denial of due process. Id. The Brady rule permits the consideration of the possible effect of allegedly suppressed evidence on the presentation and preparation of the defense. Bagley, 473 U.S. at 683, 105 S.Ct. at 3384. However, this does not entail the allowance of pure conjecture. The effect must be assessed * * * with an awareness of the difficulty of reconstructing in a post trial proceeding the course that the defense and the trial would have taken had the defense * * *, been supplied with the statement. Bagley, 474 U.S. at 676, 105 S.Ct. at 3380. A reversal is not required when a mere combing of the prosecutor's files after the trial disclosed evidence possibly useful to the defense but not likely to have changed the verdict. Giglio v. United States (1972), 405 U.S. 150, 154, 92 S.Ct. 763. In this assignment of error appellant asserts that the trial court erred in denying him discovery and use of allegedly exculpatory information. Specifically, appellant alleges that undisclosed evidence, witness statements and the initial police report of Jude Adamcik, were relevant to the central issue of appellant's guilt. Appellant argues that at the very least, the information which was not provided could have been used to impeach the State's star witness, Ms. Adamcik. Appellant maintains that Adamcik's initial police report, which alleges the murder took place on April 4, 1994, is in direct conflict with the testimony of -10- the State's expert, Dr. Challener, concerning time of death. Challener had estimated that Sims had been dead at the time of autopsy for approximately 24 to 72 hours, placing the time of death was no earlier than April 11, 1994. This alone, appellant contends, is enough to cast reasonable doubt had Lemons been afforded the ability to admit this police report into evidence as proof of existence of this prior statement. Further, appellant maintains that in the process of the investigationthe police discovered many potential witnesses whose testimony could not corroborate Adamcik's. The most credible coming from Harold Salters and Merrill Flakes, the driver and passenger who picked up Adamcik that evening. Salters does not remember picking up Adamcik on the night in question, but was uncertain. Moreover, neither Salters nor Flakes could remember a Tone being present in the apartment, nor could they identify Lemons as being present that evening in a photo line-up for the Cleveland Police. Despite the report of Adamcik's statement not being furnished by the defense, trial counsel on cross-examination, elicited testimony from Adamcik proving her recollection of the day of the murder to be April 4, 1994. Moreover, she went on to say that she recalls this with such specificity because it is the day of her cousin's birth. As a result, the issue of the conflict as to the date of death was properly before the jury even without the police report being admitted into evidence. -11- It is also clear that the inability of Salters and Flakes to identify the defendant was known to trial counsel and was argued to the jury. Accordingly, since the claimed exculpatory information was known to the defendant and argued at trial, no prejudice can be shown. II. Appellant's second assignment of error states: II. WHETHER THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING DEFENDANT REQUESTED GRAND JURY TESTIMONY. The proceedings of the grand jury are secret and the accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and the defense shows that a particularized need for disclosure exists which outweighs the need for secrecy. State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925; see, also, State v. Greer (1981), 66 Ohio St.2d 139, 420 N.E.2d 982. A particularized need exists when circumstances reveal a probability that the failure to provide grand jury testimony will deny the accused a fair trial. Davis, supra. In State v. Grewell (1989), 45 Ohio St.3d 4, 543 N.E.2d 93, the Ohio Supreme Court held that discrepancies between grand jury testimony and information provided at a later date did not meet the particularized need standard where those discrepancies were not substantial, and the inconsistencies involved only dates and locations of incidents which were easily clarified by other testimony. Id. at 9. The question of whether a particularized -12- need exists is within the discretion of the trial court. Greer, supra, at paragraph one of the syllabus. Appellant maintains that disclosure of relevant testimony by Jude Adamcik at the grand jury hearing would have enabled the appellant to attack her credibility, due to the inconsistencies, and assert the issue of the date of the murder. The appellant claims that Adamcik was the sole reason that an indictment was secured, and as a result, any flaw in her testimony meets the threshold requirement of a particularized need . As mentioned above, there is nothing in the record that indicates that any of the discrepancies were not disclosed at trial. In order for appellant to prove a particularized need, he would need to show that any disclosure would have a potential profound effect on the outcome. Since the evidence as presented by appellant amounts at most to minor mischaracterizations and less than substantial inconsistencies concerning dates, the threshold requirement of particularized need has not been met. Accordingly, appellant's second assignment of error is overruled. III. Appellant's third assignment of error states: III. WHETHER TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL IN THEIR REPRESENTATION OF THE DEFENDANT. The federal and Ohio tests for determining if a defendant was denied the effective assistance of counsel are strikingly similar. The federal test is whether counsel's conduct so undermined the -13- proper functioning of the adversarial process that the defense was prejudiced. Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus, it was determined that in Ohio an ineffective assistance claim requires proof that counsel's performance is proved to have fallen below an objective standard of reasonable representation and in addition prejudice arises from counsel's performance. Id. In order to establish such prejudice, the appellant must demonstrate that there is a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different. State v. Bradley, supra, paragraph three of the syllabus. Furthermore, we operate under the presumption that counsel's assistance was both reasonable and professional. State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417; see, also, Strickland, 446 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Lemons contends that he was denied the effective assistance of counsel because his attorneys failed to properly discover the exculpatory evidence and subsequently have that evidence presented at trial. As a result, appellant believes that had his attorneys effected due diligence, and properly addressed the discrepancy in the date of the death, as well as discovered other potentially helpful witnesses with which to attack the testimony of Jude Adamcik, the outcome of the trial would have been different. At the very least, appellant maintains he would have been afforded the -14- opportunity to present an alibi defense, instead of no defense at all. As previously indicated, counsel were aware of the discrepancy in the dates and argued the point to the jury. As to the failure to call witnesses, there is no showing the result would have been different had the witnesses been called. Indeed, statements given to the police indicated the witnesses in many respects would have corroborated Ms. Adamcik's testimony. Finally, defendant complains that counsel did not object to the testimony and evidence presented by Detective Minor relating to the photograph of a bullet hole in the wall on the grounds the photograph was taken 9 months after the murder. However, counsel did object and, again, the evidence was relevant as corroborating Ms. Adamcik's testimony that defendant shot at her. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. -15- 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, TIMOTHY, E., J., and ______________________________ JOSEPH J. NAHRA *HOLMES, J., CONCUR. PRESIDING JUDGE (*SITTING BY ASSIGNMENT: Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court.) 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 .