COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72089 STATE OF OHIO, : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : : OPINION PAUL A. SMITH, : : Defendant-Appellant : : : : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-344957 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL D. HORN MICHAEL A. SULLIVAN Assistant Prosecutors 8th Floor - The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES R. WILLIS, ESQ. Courthouse Square Building 310 Lakeside Avenue, Suite 595 Cleveland, Ohio 44113 -2- O'DONNELL, TERRENCE, P.J.: Paul Smith appeals from a common pleas court judgment entered pursuant to a jury verdict finding him guilty of felonious assault with a firearm specification, alleging prosecutorial misconduct, and trial court error in admitting hearsay testimony, a written statement of a co-defendant, and an in-court identification of the appellant. After carefully considering these allegations and reviewing the law relative to them, we affirm Smith's conviction. The record reflects that on August 1, 1996, Iris Wilson drove Paul Smith around all day in an effort to collect a $500,000 drug debt from Bootsie, a.k.a. Mock Rogers; later that evening, Smith saw Kenyatta Wells, a singer named Shantell Jones, and Rogers leave the Calypso Bar, located at Lakeshore and St. Clair Avenue, in Cleveland, and drive away in Wells' pickup truck. Smith and Wilson followed them, and when Wells reached the intersection of Lakeview Avenue and Dupont, she yelled, Bootsie. Wells drove on, but when he reached the next light, Wilson again yelled, Bootsie, somebody wants to see you. At that point, Smith exited the car, walked over to the passenger side of Wells' truck, shot out the window, put his hand into the vehicle, and shot Wells in the right calf. Rogers, believing he had been shot, told Wells, I am hit! I am hit! It was Iris and Paul. Wells then drove to a nearby grocery store, where a security guard called police and arranged to transport him to the hospital. Following their investigation, police arrested Iris Wilson and Paul -3- Smith, and the grand jury returned indictments against both for felonious assault in connection with the shooting of Kenyatta Wells. While in custody, and after she had an opportunity to speak with her defense attorney who advised her not to make a written statement, Wilson signed a waiver of her rights and gave a written statement to the police. At trial, after the jury had been seated but prior to opening statements of counsel, the court ruled that Wilson's statement was inadmissible; in response, the state dismissed its case against her and proceeded to try Smith. During presentation of its case against Smith, the state called numerous witnesses, including Kenyatta Wells, who described the incident, identified Smith as the shooter, and stated that Rogers told him the assailant's identity immediately following the shooting. The state next called Iris Wilson, who invoked her Fifth Amendment rights and refused to testify even after having been granted transactional immunity by the state, because she feared federal prosecution for harboring Smith, an illegal alien. The state then offered, and the court admitted, her written statement in which she stated Smith shot Wells. Detective Thomas Wheeler also testified describing his investigation. The defense presented only one witness, attorney Walter Camino, who stated that he represented Wilson and advised her by telephone not to give a written statement to police. -4- Following charge and deliberation, the jury returned a verdict finding Smith guilty of felonious assault. He now appeals and presents five assignments of error for our consideration. Because the first and fourth assignments of error concern allegations of prosecutorial misconduct, they will be treated together. They state: I. DUE PROCESS WAS DENIED THE APPELLANT WHEN THE STATE, ARGUABLY FOR ULTERIOR MOTIVES, DELAYED MOVING TO DISMISS THE CASE AGAINST IRIS WILSON, A CO-DEFENDANT, UNTIL AFTER THE JURY WAS SELECTED. IV. THE DEFENDANT WAS DENIED DUE PROCESS WHEN THE PROSECUTOR WILFULLY, AND FOR PATENTLY ULTERIOR PURPOSES, ELICITED FROM SEVERAL PROSECUTION WITNESSES EGREGIOUSLY PREJUDICIAL AND INFLAMMATORY TESTIMONY, WHICH PRODUCED EVIDENCE THAT INSINUATED THE DEFENDANT HAD COMMITTED VARIOUS UNCHARGED CRIMINAL ACTS. Smith alleges prosecutorial misconduct in dismissing the indictment against Iris Wilson following jury selection, alleging that he would have exercised more peremptory challenges to exclude females from the jury had he known Wilson would not be present at trial, and that Wilson's presence at the defense table during voir dire fortified an inference of the relationship between her and Smith which influenced the jury; also he contends the prosecutor implied through testimony by Wells and Detective Wheeler that police inability to locate Rogers and Jones resulted from their fear of Smith which improperly suggested Smith intimidated them. The state contends that it acted properly because it dismissed charges against Wilson only after the court issued its ruling -5- denying admission of her written statement, and that Smith failed to demonstrate any prejudice in the makeup of the jury because he failed to exercise all of his peremptory challenges; the state further argues that Smith's intent to exercise peremptory challenges to exclude female jurors is constitutionally impermissible; and finally, that Wells' and Wheeler's testimony regarding Rogers and Jones is not improper. The issues then before us concern whether the alleged prosecutorial misconduct denied Smith a fair trial. InState v. Lott (1990), 51 Ohio St.3d 160, the court set out the test to apply in assessing these claims and stated at 165: The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused. Crim.R. 48(A) provides for the state's dismissal of charges against a defendant. It states in relevant part: The state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate. The record in this case reflects the state moved to dismiss its case against Wilson immediately following the court's ruling denying the use of Wilson's written statement. The record further reveals that Smith did not exhaust his peremptory challenges during jury selection, and now argues that he would have excluded female jurors had he known Wilson would not be present at trial. This practice, however, contravenes J.E.B. v. Alabama (1994), 511 U.S. 124, which stands for the proposition that peremptory challenges cannot be exercised during voir dire to exclude females from the -6- jury because it discriminates against them on the basis of gender. Further, Wells testified that he delayed giving a written statement to police, because he feared Smith and was unsure about pursuing criminal charges against him; also that he did see Rogers following the incident. Detective Wheeler then testified and stated that he could not locate Rogers or Jones, the other occupants of Wells' car on the night of the shooting. Neither Wells nor Wheeler, however, testified that Smith threatened anyone. Accordingly, because Smith failed to show the state acted improperly or prejudiced his rights, either by dismissing the charges against Wilson, or by eliciting Wells or Wheeler's testimony, these assignments of error are overruled. The second assignment of error states: II. THE COURT ERRED, AND ABUSED ANY DISCRETION HE MAY HAVE HAD, WHEN HE OVER-RULED THE DEFENSE'S OBJECTIONS TO HEARSAY TESTIMONY PROVIDED BY THE ALLEGED VICTIM. THE ADMISSION OF THIS EVIDENCE ALSO VIOLATED APPELLANT'S RIGHT OF CONFRONTATION. Smith argues the court erred by permitting Wells to testify as to what Rogers said regarding the identity of the assailant and to identify Smith as the shooter, and by allowing Detective Wheeler to describe his investigation. The state argues the court did not err in admitting this evidence because Wells' testimony qualified under the present sense impression and excited utterance exceptions to the hearsay rule, and Wheeler's testimony did not contain hearsay. -7- The issue before us, then, is whether these statements constituted inadmissible hearsay. Evid.R. 803 provides in relevant part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. In this case, Wells testified that while he waited at a traffic light, Smith exited his car, walked up to Wells' truck, shouted at him, shot out the passenger window, then shot him in the leg. Rogers, a passenger who thought he had been shot, shouted, It was Iris and Paul. Rogers' out-of-court statement described the shooting as he perceived it and occurred while he underwent the stress caused by the shooting. Therefore, Rogers' statement identifying Iris and Paul constitutes an excited utterance and as such, the court did not err in allowing Wells to testify as to what Rogers said at that time. Likewise, the court did not err in admitting Wells' own statement identifying Smith as the shooter, because Wells saw Smith approach the car on the night of the shooting; Wells had met him in the past, and thus had a prior independent basis upon which to identify him; therefore the court did not err in permitting Wells -8- to identify Smith in the courtroom as the person who fired the shots. Our review of Detective Wheeler's testimony reveals he described his pursuit of Smith and Wilson, and he testified that he spoke with people on the street while investigating the shooting. Wheeler's testimony did not contain out-of-court statements made by any individuals who did not testify. Therefore, it is not hearsay, and the court did not err in admitting it. Accordingly, Smith's second assignment of error is without merit and is overruled. Smith's third assignment of error states: III. THE COURT ERRED, OR ABUSED ITS DISCRETION, AND THE APPELLANT'S RIGHT OF CONFRONTATION WAS VIOLATED, WHEN THE COURT ERRONEOUSLY ADMITTED THE INDISPUTABLY HEARSAY CONTENTS OF A NON-TESTIFYING DECLARANT'S WRITTEN STATEMENT AND ADMITTED THE STATEMENT ITSELF. Smith asserts that the court violated his right to confront witnesses when it admitted Wilson's written statement, because the statement is not against her interest, and it lacks trustworthiness because she gave it while in police custody. The state asserts that the court did not err in admitting the statement, however, because Wilson became unavailable as a witness; the statement subjected her to criminal liability; and circumstancessurrounding its production indicate its reliability. The issue before us, then, is whether the court violated Smith's constitutional right to confront witnesses by admitting Wilson's statement. -9- In State v. Sumlin (1994), 69 Ohio St.3d 105, the court reiterated in its syllabus the standard of review in connection with hearsay statements: A decision whether to admit the hearsay statement of an unavailable declarant pursuant to Evid.R. 804(B)(3) is one within the discretion of the trial court. Evid.R. 804(B)(3) provides a statement against interest may be admissible as long as the declarant is unavailable and states in part: A statement which * * * 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. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. In State v. Gilliam (1994), 70 Ohio St.3d 17, 19, the court examined the interaction between a statement's admissibility under Evid.R. 804(B)(3) and the confrontation clause of the constitution, and held that statements admitted pursuant to Evid.R. 804(B)(3) do not violate the confrontation clause, provided the declarant is unavailable and the statement bears adequate indicia of reliability. The court further stated that the reliability standard can be satisfied without more in a case where the evidence falls within a firmly rooted hearsay exception, such as a statement against interest. Thus, there are three essential considerations for review in connection with the admissibility of Wilson's statement: first, whether or not she is unavailable; second, whether the statement is -10- against her interest; third, whether the corroborating circumstances clearly indicate its trustworthiness. In this case, Wilson became unavailable when she refused to testify after the court granted her immunity. In her statement, Wilson admitted she drove Smith around on the day of the shooting in an effort to collect a $500,000 drug debt, and further admitted to driving the car in which Smith fled after the shooting, all of which subjected her to criminal liability for her involvement in the shooting. Further, Wilson spoke with her attorney about whether to give a statement to the police, and, despite his advice to the contrary, she gave a written statement to them after they had fully advised her of her rights. Appellant's argument that Wilson's written statement was not against her penal interest is not well taken; the corroborating circumstances and Wells' own testimony at trial clearly indicate the trustworthiness of the statement. Thus, because Wilson's statement is against her interest and because it bears adequate indicia of trustworthiness and reliability, the court did not abuse its discretion by admitting it at trial. This assignment of error, is therefore, overruled. In a supplemental brief, Smith asserts a fifth assignment of error, which states: V. IN A TRIAL WHERE POSITIVE IDENTIFICATION IS A CRUCIAL ISSUE AND HAS NOT PREVIOUSLY BEEN MADE, THE UNANTICIPATED SURPRISE POSITIVE IDENTIFICATION OF THE DEFENDANT BY STATE'S WITNESS CONSTITUTES PREJUDICIAL ERROR REQUIRING A NEW TRIAL, WHEN THE STATE HAS FAILED TO FOLLOW IDENTIFICATION PROCEDURES. -11- Smith contends the court erred in allowing Wells to identify him at trial, alleging the identification lacked a proper foundation because Wells had not previously identified Smith by lineup or photo array. Although an in-court identification may be suggestive under certain circumstances, it is impermissible only where there is a substantial likelihood of misidentification. See State v. Madison (1980), 64 Ohio St.2d 322, 331-332; Neil v. Biggers (1972), 409 U.S. 188. In Neil v. Biggers, supra at 199-200, the court stated that in assessing the likelihood of misidentification, we look to the totality of the circumstances. In State v. Davis (1996), 76 Ohio St.3d 107, the court at 113 formulated the factors we apply to examine the totality of the circumstances and stated: In order to determine the reliability of the identification, we must consider (1) the witness's opportunity to view the defendant at the time of the incident, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description, (4) the witness's certainty when identifying the suspect at the time of the confrontation, and (5) the length of time elapsed between the crime and the identification. The issue before us, then, is whether the totality of the circumstances surrounding Wells identification of Smith created a substantial likelihood of misidentification. At trial, Wells testified that at the time of the shooting, he saw Smith walk up to his truck and heard him shout in his distinctive Jamaican accent before he began shooting, and he identified him based on his observations during the shooting and his prior encounters with Smith. Further, only four months elapsed between the shooting and the trial. Given the totality of these -12- circumstances, we do not find a substantial likelihood that Wells misidentified Smith; accordingly, the court did not err in allowing this testimony, and this assignment of error is overruled. Judgment affirmed. -13- 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. JOHN T. PATTON, J., MICHAEL J. CORRIGAN, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .