COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA Nos. 72179 and 73035 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION DEMETRIUS JONES : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : APRIL 9, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case Nos. CR-343619 and : CR-343974 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor DANIEL SCHIAU, ESQ. Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 For defendant-appellant: ROBERT M. INGERSOLL, ESQ. Assistant Public Defender 100 Lakeside Place 100 West Third Street Cleveland, OH 44113 -2- PATTON, J. Defendant-appellant Demetrius Jones appeals the jury verdict finding him guilty of burglary a lesser included offense of attempted grand theft motor vehicle. On appeal, defendant claims he was denied effective assistance of counsel. The state called six witnesses. The first witness to testify was Debra Hurd. She stated she worked as a technician at St. Alexis Hospital. On August 25, 1996, she testified she drove her boyfriend's Buick LeSabre to work and it was in good condition when she parked it. During the afternoon she was informed by a co- worker that her car had been broken into. She notified hospital security and went to inspect the car. She discovered a window had been broken and the steering column had been damaged. The second witness to testify was Neglia Whedbee, who also worked at St. Alexis Hospital. She testified she drove into the hospital parking lot and saw defendant sitting in the Buick LeSabre. She stated she did not think anything was wrong so she went into the building. After arriving on the third floor she looked out the window and noticed a window had been broken on the LeSabre. Subsequently, she observed defendant approach another car which she knew belonged to a co-worker. At this point, Whedbee yelled at defendant who fled. She then informed hospital security of the break-in. Next, a hospital security officer testified. He stated he received a report that some hospital personnel were chasing a suspect. He testified he and his partner drove around the -3- neighborhood looking for the suspect but could not find anyone matching the description given by Whedbee. A short time later, the officer stated he was informed the suspect had been cornered inside a nearby house. The officer testified he and his partner went to the house and arrested defendant. A Cleveland Police officer also testified. He stated he responded to a call of an attempted auto theft at St. Alexis Hospital. He testified he examined the LeSabre and noted it had a broken window and peeled steering column. The officer stated he spoke with Ms. Hurd and Ms. Whedbee and placed defendant in custody when he was brought to the hospital by the hospital security officers. In addition, the officer testified he showed Ms. Hurd the contents of a blue bag found near defendant when he was arrested and that Ms. Hurd identified the contents of the bag as audio tapes taken from her car. The final witness to testify on behalf of the state was Thomas Mrugacz. He stated he was working in his backyard when a man jumped his fence and explained he was being chased. The man then entered Mrugacz's house. Mrugacz attempted to stop the man but was dragged into the house with the man. Mrugacz's dog Salley, who was chained in the backyard, broke the chain, came into the house and chased the man. Mrugacz stated the man ended up in the bathroom where he was apprehended by the police. At the close of his testimony, Mrugacz was unable to identify defendant. The state rested its case. -4- Defendant did not call any witnesses on his own behalf and did not testify himself. The jury returned its verdict finding defendant guilty of burglary a lesser included offense of attempted grand theft motor in violation of R.C. 2911.12. Defendant now appeals and presents a single assignment of error, which states as follows: DEMETRIUS JONES WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHEN HIS TRIAL COUNSEL FAILED TO REQUEST A JURY INSTRUCTION ON HIS DECISION NOT TO TESTIFY. Defendant argues he was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution. He bases this argument on defense counsel's failure to request a jury instruction regarding his decision not to testify on his own behalf. Defendant claims defense counsel's failure to request a jury instruction violated an essential duty to represent him. Further, he contends this failure to instruct was prejudicial because when a defendant does not testify the natural inclination of the jury is to use defendant's silence as a tacit admission of guilt. State v. Rollins (1976), 49 Ohio App.2d 330, 332. Thus, if defense counsel would have requested the jury be given a cautionary instruction the aforementioned natural inclination would not have prejudiced him. The state counter-argues defendant and defense counsel made a tactical decision to not have defendant testify fearing impeachment regarding his prior record. This tactical decision was made consciously and defendant cannot now, in hindsight, attempt to -5- benefit from the outcome of that decision. Moreover, the state maintains the trial court admonished the jury defendant had a constitutional right not to testify which renders his alleged prejudice unpersuasive. A defendant has the right to have the judge instruct the jury that the defendant's failure to testify cannot be considered for any purpose. Upon proper request, the court has a mandatory duty to give such an instruction. State v. Fanning (1982), 1 Ohio St.3d 19. The request, however, must be in writing and made at the close of evidence, or at such earlier time as the court reasonably directs. Fanning, supra; Crim.R. 30. Here, there was no written request, yet the jury was informed on two occasions it was defendant's constitutional right not to testify. Thus, the issue is whether defendant was rendered ineffective assistance of counsel based on defense counsel's failure to request a jury instruction on his decision not to testify. The test for ineffective assistance of counsel was given by the Ohio Supreme Court in State v. Bradley (1989), 42 Ohio St.3d 136. The court held that counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representa- tion and, in addition, prejudice arises from counsel's performance. In Strickland v. Washington (1984), 466 U.S. 668, 687, where the United States Supreme Court set forth a two-pronged analysis for determining whether counsel's assistance was so defective as to require reversal. First, the defendant must show that counsel's -6- performance was deficient, and that the errors were so serious that counsel was not functioning as counsel as guaranteed by the Sixth Amendment. Second, the defendant must demonstrate that the deficient performance was prejudiced to the defense, and that the errors deprived the defendant of a fair trial. In the present case, defendant has not shown that defense counsel's performance fell below an objective standard of reason- ableness. The transcript indicates defense counsel had the opportunity to object, and chose otherwise. Defendant has not demonstrated this decision fell below an objective standard of reasonable representation such that he was deprived of counsel. Nor has he shown, assuming counsel was ineffective, that the error so prejudicial as to deprive him of a fair trial. The jury was informed on two occasions that defendant had the right not to testify. Moreover, defendant cannot show prejudice given the eye witness testimony provided to the jury. Therefore, defendant's sole assignment of error is overruled. Judgment affirmed. -7- 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 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. PATRICIA A. BLACKMON, A.J JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON 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 .