COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71974 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : RODRICKUS SMITH, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-340162 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: John R. Kosko Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Darin Thompson Assistant Public Defender 1200 West 3rd Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Rodrickus Smith, appeals his conviction of murder after a jury trial. Appellant assigns a variety of errors for our review including warrantless arrest, prosecutorial misconduct, and ineffective assistance. We affirm. Appellant's conviction arises from a series of confessions taken over the course of three days by the East Cleveland Police Department, following an arrest by the Cleveland Police Department. Appellant maintains that these confessions were pure fabrication and that he, a man with an IQ of 67, was mentally incapable of dictating the confessions in the form presented. In the alternative, appellant maintains that these confessions were tainted as fruit of the warrantless arrest. On May 8, 1996, Smith was arrested by Cleveland Police. This arrest was based on a tip from East Cleveland Police that defendant was a suspect in the murder of Theodorsher Williams. During the apprehension of Smith, the Cleveland Police discovered and confiscated a knife which was later tested for the existence of blood: no blood was found. The next day, May 9, 1996, Smith was transferred to the East Cleveland Police Department where he was further detained and questioned about his involvement in Williams' death. Over the next couple of days, Smith inculpated himself to varying degrees, eventually admitting to his involvement. During their initial conversation, May 9, 1996, Smith relayed to Sargent Lamont Lockhart that he not only did not know of, and was not involved in the murder of Williams, but that he was also -3- not familiar with the person, Theodorsher Williams. Before questioning Smith on that date, and at all relevant times thereafter, Sargent Lockhart was careful to read Smith his Miranda rights, and to attain Smith's waiver of these rights in writing. Later that same evening, and during a subsequent questioning period, the story of Smith's involvement began to evolve. On this occasion, Smith told Lockhart that late Saturday evening, April 20, 1996, or early Sunday morning, April 21st, he could not recall exactly, he was near some abandoned buildings in the area of Lakeview, in Cleveland, when he heard a woman scream. Shortly thereafter, he saw two males running from the area both wearing ski masks or stockings over their faces. As these men passed, he noticed that one of the males was brandishing a silver knife. The males quickly fled from the area, and consequently out of his sight, and he never saw them again. Appellant was also asked if he was carrying a knife on the night in question, to which he responded in the negative. Upon further questioning, Smith admitted to knowing the victim and identified her as a streetwalker and crack head in his neighborhood.On the evening of her murder, Sunday April 21st, at approximately 1:15 a.m., he was selling dope for his supplier, John Manningham, near Lakeview and Durant, when he received a page from his girlfriend, which prompted him to get on his bike to go to her house. On the way to his girlfriend's, he was approached by a blue Chevrolet Chevette containing three individuals; John Manningham, a second male Smith referred to as being light skinned, and -4- Williams, who was naked in the backseat and appeared to be cracked out. Manningham instructed Smith to follow his car to Willowmere off of Lakeview in Cleveland. By the time appellant reached this location, Manningham had already arrived and parked his vehicle. Manningham and the other male proceeded to carry Williams into the alley between two buildings and Manningham instructed Smith to stay in front as a lookout. While standing out front, appellant heard Manningham and Williams arguing about money, a dispute over $300, of which Williams was only able to produce $100. Manningham then approached Smith and requested one of the knives he was carrying, to which appellant complied. Smith then heard Williams scream some more, and he turned to see Manningham stabbing Williams repeatedly, while his friend beat her about the head. Appellant became scared, and attempted to flee the scene as he noticed Manningham and the other male place Williams back in the vehicle. Manningham then approached Smith and told him not to say a word about what he saw and to follow them to E. 123rd, where they dumped the body. After appellant failed to describe accurately the area where the body was left, Smith offered to escort the officers to the area in question. The appellant and detectives traveled to the area of Lakeview and Willowmere, in East Cleveland, Ohio, where appellant pointed to the alley between two abandoned buildings. Appellant then took the detectives to Tuskarora and 125th, where he directed them to the corner of 125thand Forestgrove. They all exited the squad car and appellant took them to the exact location where the body was -5- discovered on April 22, 1996. Upon returning to the police station, appellant related the entire account so that it could be recorded in written form. This written account was read and initialed by appellant. After initialing the statement he stated to Lockhart: How can I admit the truth to you when I cannot admit what I have done myself. On May 11, 1996, the appellant asked to talk to the East Cleveland detectives stating that he wanted to tell the truth about the murder of Williams. Before beginning, he was again read his Miranda rights and signed a waiver slip. Appellant went on to say that his last statement was mostly correct, but there was no third male involved, the only participants were appellant and Manningham. In his new written statement Smith stated that Manningham had asked him to meet him at about 7:30 p.m. on Durant. There, Manningham asked Smith to go home and retrieve two knives and meet back on Durant at midnight. At approximately 12:30 a.m., Smith met Manningham and Williams, who were both sitting in Manningham's blue Chevette. Manningham asked Smith for his knife, and they all proceeded to the rear of the abandoned building on the corner. Manningham told appellant to grab a stick on his way back, and he complied. Manningham then took the stick, hit Williams in the head and asked her, Bitch where is my money at? Williams reiterated that she only had $100, and Manningham started beating her about the head and body. Manningham then gave the stick to Smith and told him to continue the beating until he got tired. Smith hit Williams in the head about seven times. Manningham then proceeded -6- to stab her approximately 30 times, as she resisted. Manningham then picked up the stick and beat her some more. After Manningham stripped her of all of her clothes, Smith and Manningham left the scene and Williams to die. At approximately 11:30 p.m. Sunday night, Smith met appellant and they returned to the scene to move the body. Smith placed Williams in the backseat of the Chevette, and he followed Manningham's car on his bike to E. 125th Street. There they found two abandoned buildings and placed the body in the alley separating them. Before leaving, Manningham stomped on the body as did Smith. On his way home appellant threw the knife carrier, the sleeve which had held the murder weapon, in the bushes in the area of 125th and Carylon Place. On May 16, 1996, appellant again indicated that he wished to speak to the detectives relative to the homicide of Theodorsher Williams. On this occasion he stated that his statement implicating Manningham was untruthful and that Manningham was not involved in the incident. Appellant further stated that he was also not involved and he made the prior confession because he thought it would help to straighten out his life. Lockhart later testified that between appellant's last confession and his recantation the appellant was incarcerated in the East Cleveland jail with Manningham. After his confession, Smith agreed to allow the police to search his residence, to draw blood and to take hair samples to determine if they were a match to those found at the scene. After -7- the appropriate tests had been administered, Smith was eliminated as a possible donor of the semen found in Williams. The police further failed to produce any physical evidence, beyond the confession, connecting Smith to the crime. On June 25, 1996, appellant was indicted on one count of aggravated murder. On June 28, 1996, the appellant entered a plea of not guilty, and on July 19, 1996 Smith was referred to the psychiatric clinic for a competency report. On October 28, 1996, Smith was adjudged to be competent. Trial by jury commenced on December 16, 1996, and on December 20, 1996, the appellant was found guilty of the lesser included offense of murder. Appellant was then sentenced to a term of 15 years to life imprisonment. I. Appellant's first two assignments of error address the warrantless arrest and will, as a result, be treated together. I. THE ADMISSION OF RODRICKUS SMITH'S STATEMENTS CONSTITUTED PLAIN ERROR BECAUSE THEY WERE THE FRUITS OF A WARRANTLESS ARREST WITHOUT PROBABLE CAUSE. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO EXCLUDE RODRICKUS SMITH'S STATEMENTS AS FRUITS OF HIS ILLEGAL ARREST. In State v. Williams (1983), 6 Ohio St.3d 281, 452 N.E.2d 1323, the Supreme Court of Ohio examined the issue of warrantless arrests and their effect upon subsequent evidence or confessions obtained. The court determined that warrantless arrests were not per se illegal and may be justified where exigent circumstances exist. Id. -8- In order to determine whether evidence discovered by police officers after a Fourth Amendment violation is fruit of the poisonous tree and accordingly subject to the exclusionary rule, the issue is whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of that primary taint. Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 488. The relevant inquiry is guided by several factors, including the temporal proximity of the Fourth Amendment violation and the confession, intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. Illinois (1975), 422 U.S. 590, 603-604, 95 S. Ct. 2254, 2262. If the government maintains an act of the defendant purges the taint of illegality, the threshold requirement is the voluntariness of the defendant's act. Id., 422 U.S. at 604, 95 S.Ct. at 2262. The question whether a confession is the product of free will under Wong Sun must be under the facts of each case. No single fact is dispositive. *** The Miranda warnings are an important factor to be sure in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, *** and particularly,the purpose and flagrancy of the official misconduct are all relevant. Id., 422 U.S. at 603, 95 S.Ct. at 2261. -9- The statements made by Smith to Sargent Lockhart were valid and made of appellant's free will. Smith voluntarily entered into these discussions with full knowledge of their nature and after being apprised of and subsequently waiving his Miranda rights. In Cooks v. State (1985), 699 P.2d 653, cert. denied, 106 S.Ct. 268, the court, interpreting Brown, determined that a confession made nearly two days subsequent to the illegal arrest accompanied by a waiver of Miranda warnings was sufficient to dissipate the coercive nature of incarceration. Id. In cases of this nature, where the confession is obtained at least a day after the warrantless arrest, the temporal proximity element necessary in order to allow a suppression is sufficiently removed. State v. Daugaard (1993), 630 A.2d 96, 32 Conn.App. 483. Further, when a person is subjected to an illegal arrest, and consequently questioned by a different sovereign, the removal of the taint of the warrantless arrest is further aided. Id. In the case at bar, Smith was arrested by the Cleveland Police Department on the May 8, 1996 at approximately 11:10 p.m. He was transferred to the East Cleveland Police Department approximately 16 hours later, on May 9, 1996. The first attempt at questioning appellant was made on May 10, 1996, at approximately 2:55 p.m. At this point in time, Smith admitted to nothing. It was not until May 11, 1996, that Smith began to inculpate himself and started the chain of confessions. As a result of the breadth of time associated with the warrantless arrest of Smith, and his subsequent confession, the -10- temporal proximity of the arrest and confession has been removed. The delay of three days between arrest and confession was sufficient to remove any illegality of the arrest and purge any potential taint. Accordingly, the trial court's determination to allow the confessions into evidence was proper, and these assignments of error are overruled. II. Appellant's third assignment of error states: III. THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING IMPROPER QUESTIONING AND CLOSING ARGUMENTS BY THE ASSISTANT COUNTY PROSECUTOR. Notice of plain error is taken with the utmost caution, under exceptional circumstances and only to prevent the manifest miscarriage of justice. State v. Landrum (1990), 53 Ohio St.3d 107, 111, 559 N.E.2d 710. The conduct of a prosecuting attorney during trial cannot be made a ground for error unless the conduct deprives the defendant of a fair trial. State v. Kennan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203, 206; State v. Apanovitch (1987), 33 Ohio St.3d 19,24, 514 N.E.2d 394, 400. Although it is a serious issue, in capital cases we have not treated prosecutorial misconduct as reversible error `except in rare instances' Keenan 66 Ohio St.3d at 406, 613 N.E.2d at 206, quoting State v. Depew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542, 556. Furthermore, in weighing its effect on an appellant's due process rights, the effect of the misconduct on the jury must be determined in the context of the entire trial. Kennan at 406. Moreover, in closing -11- argument the prosecution is afforded a wide degree of latitude, crossing the barrier of propriety only when his remarks affect a substantial right of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883. A judgment will not be reversed if it is clear beyond a reasonable doubt that, absent the prosecutor's remarks, the jury would have found the defendant guilty. State v. Loza (1994), 71 Ohio St.3d 61, 78, 641 N.E.2d 1082. The appellant contends that the prosecutor improperly questioned Smith concerning his employment history, and concerning Smith's prior incidences wielding a knife. Appellant further maintains that the prosecutor improperly attacked the appellant's credibility during closing argument by offering his opinion as to the veracity of appellant's claims. The questions put forth by the prosecution concerning the appellant's employment history were proper because they were invited by the defense when they similarly questioned appellant on direct. Similarly, the prosecutor's questions concerning the appellant's prior use of knives to injure were also proper because they were referred to in the appellant's statement of May 10, 1996. The foundation of the appellant's defense was the false nature of the contents of each statement, claiming that they were pure fabrication. Both the state and defense are afforded wide latitude in responding to and attempting to disprove the arguments of opposing counsel. Loza, supra, at 78. The prosecution's questions concerning Smith's prior involvement with knives were clearly -12- proper as they were trying to prove the veracity of this particular statement's contents. Thus, they were not improper. The prosecutor's closing argument does contain error. The prosecutor, referring to the defense's claim that these confessions were pure fabrication stated: Ladies and Gentlemen, that is probably the most ridiculous contention I think I've ever heard as a prosecutor trying cases for 12 years, all right? There is no way you can accept that as credible. The prosecutor's remarks cannot be considered so egregious as to constitute plain error. It is widely held that prosecutors should not express their personal beliefs or opinions regarding a defendant's guilt. State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293. However, a prosecutor may express his personal opinion about the guilt of the accused if that opinion is based on the evidence presented at trial. State v. Keenan (1993), 66 Ohio St.3d 402, 408, 613 N.E.2d 203. Further, references which are short and oblique have not been found to be prejudicial if they are justified as a reply to the defense arguments. Lott, supra. The remarks made by the prosecutor, albeit unfortunate and potentially misleading to a juror, cannot be considered to be so out of context as to be prejudicial. The weight of the confessions and the detail with which Smith recounted the murder, were sufficient on their own to convict. The prosecutor's overzealous response to the appellant's argument was quickly stated and relatively oblique in nature. This short reference to the viability of appellant's argument cannot be said to have -13- substantially affected the jury's decision, which clearly rested on clear evidence of guilt. As a result, the appellant's third assignment of error is without merit. III. Appellant's fourth assignment of error states: IV. RODRICKUS SMITH WAS DENIED A FAIR EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S NUMEROUS FAILURES OF FUNDAMENTAL DUTY. The federal and Ohio test 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 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 presume that counsel's assistance was both reasonable and professional. State v. Thompson (1987), 33 -14- 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. The appellant maintains that defense counsel at the trial court level was deficient in his performance for failing to raise the issue of the warrantless arrest, failing to object to what appellant counsel deemed to be inappropriate lines of questioning by the prosecutor, as well as an attack on appellant's credibility during the prosecutor's summation. Each of these areas has been addressed and resolved in previous assignments of error. As a result, it cannot be said that the defense counsel's assistance fell below the objective standard of representation to amount to prejudice. Accordingly, this 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. PORTER, P.J., and ____________________________ JOSEPH J. NAHRA PATTON, J., CONCUR. 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 .