COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71789 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION ZERRICK BYRD : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : APRIL 23, 1998 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: KIMBERLY MAHANEY, ESQ. WILLIE L. GRIFFIN, ESQ. Assistant County Prosecutor 861 East 143rd Street The Justice Center, 8th Fl. Cleveland, OH 44110 1200 Ontario Street Cleveland, OH 44113 -2- PATTON, J.: Defendant-appellant Zerick Byrd ( defendant ) appeals the jury verdict finding him guilty of involuntary manslaughter, in viola- tion 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 defendant 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, Corey Shedwick, 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 and 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 defendant was seen -3- holding the victim's head by the hair while he punched him in the face. Shedwick 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. Defendant, Parks, and Shedwick eventually caught up with the rest of the students on their way to the dance. However, one of the witnesses then heard Parks say defendant and Shedwick 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. Subsequently, personnel at the Job Corps Center became aware of the incident and questioned defendant. Thereinafter, the police were contacted and they 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 -4- timely notice of appeal to this court and submits three assignments of error. In his first assignment of error defendant states as follows: WAS THE TRIAL COURT IN ERROR BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS ORAL AND WRITTEN STATEMENTS TO THE POLICE, THEREBY, DENYING THE DEFENDANT HIS CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION, AS WELL AS THE RIGHTS OF EQUAL PROTECTION AND DUE PROCESS OF LAW. Defendant argues the trial court improperly denied his motion to suppress because he was not read his Miranda rights. He claims he should have been read his Miranda rights before he was detained at the Job Corps Center and questioned by Job Corps Center personnel. Defendant maintains he was taken into custody by the personnel at the Job Corps Center and was denied freedom of movement. Thus, since he was denied freedom of movement and questioned, his privilege against self-incrimination was jeopar- dized and any subsequent information obtained should not have been used against him. The state counter-argues when defendant was taken into custody by the Job Corps Center personnel they were under no duty to read him his Miranda rights. Only the police are required to advise an individual, who has been detained, that he is entitled to certain Constitutional rights. Private individuals have no duty to inform a person of his or her Miranda rights. In Miranda v. Arizona (1966), 384 U.S. 436, 444, the United States Supreme Court defined custodial interrogation as ques- tioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any -5- significant way. Furthermore, in Berkemer v. McCarty (1984), 468 U.S. 420, 442, the Court referred to custodial stops and stated only when the individual detained at such stops is formally arrested or subjected to the functional equivalent of a formal arrest is the individual in custody. It is clear from these two cases an individual is subject to being read Miranda rights only if the individual is being ques- tioned by law enforcement officers and if he has been taken into custody via a formal arrest or deprived of his freedom in any significant way. Applying this analysis to the present case, defendant was not questioned by law enforcement officers. He was questioned by personnel from the Jobs Corps Center. Moreover, defendant was not formally arrested nor is there any evidence indicating he was deprived of his freedom in any significant way before being read his Miranda rights. Therefore, defendant was not deprived of his Constitutional right against self-incrimination and any subsequent information provided by him was admissible against him. Thus, based on the above analysis the trial court did not abuse its discretion and properly denied defendant's motion to suppress. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: WAS THE TRIAL COURT IN ERROR BY DENYING THE DEFENDANT A SEPARATE TRIAL, WHICH IN ESSENCE DENIED HIM THE ABILITY AND RIGHT TO CALL THE CO-DEFENDANTS TO TESTIFY ON HIS BEHALF, WHICH IN TURN WAS A DENIAL OF THE APPELLANT'S CONSTITUTIONAL RIGHT OF DUE PROCESS. -6- Defendant argues the trial court erred by denying him a separate trial and thereby impinged upon his constitutional right to due process and equal protection. He claims this denial precluded him from calling his co-defendants as witnesses, who could have offered exculpatory testimony on his behalf. Defendant maintains this exculpatory testimony would have placed him at the Job Corps Center on the night in question in contradiction of the prosecution's theory of crime. The state argues defendant has suffered no prejudice as a result of the denial of his motion for separate trials. The state submits there were numerous witnesses who placed defendant at the scene plus these same witnesses testified the co-defendants acted in concert when beating the victim. Therefore, the testimony of the co-defendants would have had not been probative. Crim.R. 8(B) permits joinder of defendants if they are alleged to have participated in the same act or series of acts constituting an offense or in the same course of criminal conduct. The court may sever trials, pursuant to Crim.R. 14, if joinder prejudices the right of one or more of them. It is the burden of the defendant claiming error to affirmatively demonstrate prejudice when such a motion is denied. State v. Torres (1981), 66 Ohio St.2d 340. The test is whether a joint trial is so manifestly prejudicial that the trial judge is required to exercise his or her discretion in only one way by severing the trial.* * * A defendant must show clear, manifest and undue prejudice and violation of a substantive right resulting from failure to sever.* * * State v. Schiebel -7- (1990), 55 Ohio St.3d 71, 89, quoting United States v. Castro (C.A. 9, 1989), 887 F.2d 988, 996. The decision to grant a co-defen- dant's motion for a separate trial is within the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of that discretion. State v. Torres, supra. Defendant indicates the denial of his motion for a separate trial violated his constitutional right to due process and equal protection. However, defendant does not support this proposition by showing how his constitutional rights were allegedly violated. He merely states his fellow co-defendants would have offered exculpatory testimony on his behalf. In addition, defendant does not show clear, manifest and undue prejudice resulting from the trial court's failure to grant separate trials. He complains separate trials for the three defendants would have allowed him to call the co-defendants as witnesses at his trial to offer exculpatory testimony on his behalf. However, he does not substantiate this argument by indicating what either of the co-defendants testimony would consist of. Furthermore, defendant claims the co-defendants would have offered exculpatory testimony as to [his] activities on the evening of the crime. This is not completely accurate. The co-defendants could not be forced to testify because they could still assert their Fifth Amendment right against self-incrimination. This was a likely possibility in consideration of the fact that the co- defendants chose not to testify in the present case. -8- Also, as the state maintains, there was eyewitness testimony identifying defendant as being present at the scene of the crime. These same witnesses also identified defendant as one of the assailants. Moreover, another witness stated defendant said he and a co-defendant were going back to finish the job. We review refusals to sever trials for an abuse of discretion. State v. Torres, supra. Having found neither evidence of a violation of one of defendant's constitutional rights nor evidence of undue prejudice we find the trial court did not abuse its discretion in denying defendant's motion for a separate trial. Therefore, defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: WAS THE TRIAL COURT IN ERROR BY ALLOWING THE JURY TO CONSIDER THE LESSER CHARGE OF INVOLUNTARY MANSLAUGHTER, GIVEN THE FACTS THAT THE DEFENDANT HAD NOT BEEN FORE- WARNED OF SUCH POSSIBILITY AND THEREFORE GIVEN NO OPPORTUNITY TO DEFEND SUCH CHARGES. Defendant did not present an argument in support of this assignment of error, therefore we need not address this assignment of error. See App.R. 12(A)(2). Accordingly, defendant's third assignment of error is overruled. Defendant's fourth assignment of error states as follows: THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW DUE TO PERVASIVE AND REPEATED INSTANCES OF MISCONDUCT, ERRORS IN DECISIONS AND INATTENTIVENESS BY THE TRIAL JUDGE WHICH DENIED THE APPELLANT A FAIR TRIAL. Defendant argues he was denied his right to due process and a fair trial as a result of several errors committed by the trial court. First, he claims the trial court favored the prosecution by -9- allowing the prosecution to submit as evidence extremely gross pictures of the victim. Second, defendant complains the trial court failed to rule on several objections defense counsel made because the trial court was asleep. Similarly, defendant contends because the trial court was sleeping the rulings he did make on the objections were cursory in nature. The state maintains the admission or exclusion of evidence, i.e.photographs, is within the sound discretion of the trial court and the trial court did not abuse its discretion in the instant case. Also, the state contends defendant's claim that the trial court was sleeping is outrageous and there is nothing in the record to support this allegation. Under Evid.R. 403 and 611(A), the admission of photographs is left to the sound discretion of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 264. In order to be admissible, the probative value of a photograph must outweigh the danger of material prejudice to the defendant and the photograph must not be repetitive. Id., at paragraph seven of the syllabus. Defendant claims the photographs of the victim lying on the ground at the scene were inflammatory and premature. We disagree. At the time this issue arose at trial a policeman was testifying about the scene and the condition of the victim when he was discovered. The state attempted to admit four photographs depicting the scene and the condition of the victim. Defense counsel objected and the trial court instructed the state to submit -10- only two of the photographs into evidence. The photographs supported the policeman's testimony by depicting the scene of the crime and defendant lying on the ground, naked. The lighting in the pictures is of poor quality and it is difficult to perceive any injuries to defendant or blood that was present. As a result we do not find the photographs to be inflammatory or premature. Next, defendant argues the trial court was asleep during the trial and made cursory rulings regarding several objections defendant made. There is no evidence in the record indicating the trial court was asleep or made cursory rulings regarding defen- dant's objections. Therefore, based on the foregoing analysis defendant's fourth assignment of error is overruled. Judgment affirmed. 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. -11- A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. MICHAEL J. CORRIGAN, J., CONCUR. JOHN T. PATTON, 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 reconsidera- ation 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 .