COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72228 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : SAJOH YATES : OPINION : Defendant-Appellant : Date of Announcement of Decision: APRIL 23, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-342672 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender DENISE R. CAMERON, Assistant SCOTT ROGER HURLEY, Asst. Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street Cleveland, Ohio 4113-1569 -2- JAMES M. PORTER, P.J.: Defendant-appellant Sajoh Yates appeals from convictions following a jury trial for failure to comply with an order or signal of a police officer; assault on a police officer; and two counts of drug trafficking. Defendant claims the trial court prejudiced defendant's case by making a comment on police officers generally and that he did not receive effective assistance of counsel who failed to request a limiting instruction on introduction of prior criminal act evidence. We find no error and affirm. At trial, the State presented three East Cleveland police officers who testified to defendant's crimes. Officer Joseph Lucarelli testified that on November 3, 1995, he and Officer Randy Cottingham were in a marked police cruiser conducting traffic enforcement at East 133rd, Sixth Avenue and Arlington Avenue. They saw defendant run a stop sign at that location. They attempted to pull defendant over, turning on their overhead flashers and siren. Yates, who was alone, sped up his car, pulled into a driveway on Sixth Avenue and fled from the vehicle. Officer Lucarelli saw Yates drop an object from his left hand and run through the back yards. Officer Cottingham pursued him. As Cottingham pursued defendant, Officer Lucarelli secured Yates' vehicle and recovered the item Yates had dropped. Lucarelli testified that he recovered a plastic bag containing thirty-one rocks of crack cocaine and a piece of plastic containing a powdery substance believed to be cocaine. Officer Lucarelli radioed for -3- assistance from other East Cleveland police officers, advising that the suspect was Sajoh Yates, whom he knew from previous encounters. Later, Officer Lucarelli learned that other officers had apprehended Yates after a brief fight. Yates was returned to his car on Sixth Avenue where Officer Lucarelli identified him as the person running from the car and dropping the plastic bag with the drugs. Officer Cottingham corroborated Lucarelli's testimony about defendant running the stop sign. When Yates fled, Officer Cottingham gave chase on foot, never losing sight of him, and apprehended Yates at Scioto Avenue and Hayden Avenue a minute later. Cottingham did not know the suspect's name. East Cleveland Officers Von Eric Harris and Michael Aust assisted in the apprehension.The uniformed officers wrestled Yates to the ground as he resisted arrest by throwing punches and kicking. Officer Harris testified to the assistance by Cottingham in subduing Yates who resisted arrest and fought with the officers. Robert Velton, a chemist with the Ohio Bureau of Criminal Identification and Investigation, analyzed the substance submitted by the East Cleveland Police Department and concluded that there was 3.61 grams of crack cocaine (twenty-nine rocks) in bag one and 0.21 grams of cocaine in bag two. Defendant denied any knowledge of the cocaine or the officers' accounts of the events. Yates testified that on November 3, 1995, near the time of the incident, he left his nearby home on foot. While walking with two other males, a police car pulled up. An -4- officer exited the car and told the males to get up against the car. Defendant testified that he was then grabbed and told that he was going for a spin and placed in the police car. On cross-examination, defendant admitted to kicking Officer Harris while he was being apprehended. He admitted to having prior contact with Officer Lucarelli when he was arrested for drug trafficking. Defendant also admitted to selling drugs in the past, testifying: Q. Have you ever seen crack cocaine before? A. Yes. I used to sell it before I went to jail for it before. At the time I was working at Uhle Construction Company, and wasn't even selling no more. Q. What does it look like? A. Little white rocks. But I have seen it before, when I sold it before. But this time I had nothing to do about it. That is all there is to it. I had nothing to do with it. I didn't do it. (Tr. 236-237). Defendant also testified that after he was released from jail, he saw a man named Tito who admitted to being the man who fled from the vehicle that night. After the defense rested and outside the presence of the jury, the trial court addressed the issue of whether an instruction on prior bad acts was warranted by defendant's admission of prior drug trafficking. Defense counsel requested no instruction be given as such an instruction would only draw the jury's attention to the prior acts resulting in prejudice to defendant. We will address the assignments of error in the order presented. -5- I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT COMMENTED ON RELIABILITY AND CREDIBILITY OF POLICE OFFICERS WHO WERE TESTIFYING IN APPELLANT'S CASE, VIOLATING APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL. Defendant argues that the trial court failed to remain impartial when the trial court explained to the jury the reason for the delay in starting the trial on the first day. The court made the following statement: *** Actually one of the officer [sic] involved in this case was involved in a police emergency, and as a result was unable to be here. So, please, I hope that you will understand and not hold it against the State of Ohio in any way. But I think if it was any of us that needed the police during an emergency, they would be glad to have a police officer there and not mind waiting. (Tr. 142). We find the trial court's comment was innocuous, fleeting and did not express an opinion as to credibility of the police officers and/or bolster the testimony of the police officers. The comment was simply an excuse for failing to start the trial on time. It did not reflect unfairly on defendant or prejudice his cause. Furthermore, the trial court's instructions to the jury cured any perceived error concerning witness credibility. See State v. Allen (1995), 102 Ohio App.3d 696. In the case at bar, the court read the jury an instruction on credibility and commented as follows: You, the jury, are the sole judges of the facts, of the credibility of the witnesses, -6- and the weight to be given to the testimony of each witness. To weigh the evidence, you must consider the credibility or believability of each person testifying. * * * Now, police officers have testified in this case. In determining the weight or credibility to be given to their testimony, you should apply the same rules that you apply in determining the weight and credibility of any other witness. Merely because a witness is a police officer does not warrant the jury in giving his or her testimony any more or less weight or credibility than that of any other witness. (Tr. 291, 294-95). Finally, the court instructed the jury, as follows: If, during the course of the trial, the Court said or did anything that you consider an indication of my views on the facts, you are instructed to disregard such impressions during your deliberations, and consider only the evidence. My objective is to be fair and impartial in presiding over this and every other trial. *** I do not have the right or the desire to invade the province of the jury by indicating in anyway a preference between the State and the defendant. (Tr. 315-16). If there was any risk of prejudice from the court's innocuous statement, these statements cured it. The jury is presumed to follow the court's instructions. State v. Loza (1994), 71 Ohio St.3d 61, 75; State v. Franklin (1991), 62 Ohio St.3d 118, 127; State v. Henderson (1988), 39 Ohio St.3d 24, 33. Assignment of Error I is overruled. II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY THE SIXTH AMENDMENT TO -7- THE UNITED STATES CONSTITUTION, WHEN DEFENSE COUNSEL FAILED TO REQUEST A LIMITING INSTRUCTION REGARDING APPELLANT'S PREVIOUS CRIMINAL ACTIVITY. Defendant claims he was denied effective assistance of counsel because trial counsel failed to request a limiting instruction regarding defendant's volunteered admission of prior criminal activity. He asserts that he was deprived of a fair trial when defense counsel allowed the information of prior criminal activity to be conveyed to the jury without a limiting instruction. The standards to be applied when considering whether counsel was constitutionally ineffective were set forth by this Court as follows in Lakewood v. Town (1995), 106 Ohio App.3d 521, 525-26: The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. [T]he defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must also prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Applying these standards of ineffective assistance of counsel to the facts in the case at bar, a prejudice inquiry must be made. Defendant suggests that, but for counsel's failure to request a limiting instruction regarding defendant's admission of prior criminal activity, the outcome of the trial would have been -8- different. Even if a defendant shows that particular errors of counsel were unreasonable, the defendant must still establish that such errors actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings. If this were the case, virtually every act or omission of counsel would meet that test, and every error that conceivably could have influenced the outcome would be considered to undermine the reliability of the results of the proceedings. A review of the evidence would suggest otherwise. The prosecution presented overwhelming other evidence as to the guilt of the defendant. Furthermore, defense counsel did not request a limiting or curative instruction for strategic reasons, stating as follows: Your Honor, it would be my position not to give an instruction on the prior acts of the defendant, and his admission from the witness stand that he has, in fact, sold crack cocaine before would only draw attention to it and be prejudicial to him. And I think an instruction regarding his involved statement would be detrimental to his case and would be extremely prejudicial to his case. So I would say we would be better off not giving an instruction and thereby not drawing attention to it. (Tr. 240-241). The court stated that the admission was volunteered and agreed not to give an instruction. In this case, defense counsel exercised strategic judgment in not requesting the curative instruction. He would have called attention to this fleeting and voluntary disclosure. To allow the jury to revisit and reconsider this information would have compounded any prejudice to the defendant. -9- Assignment of Error II is overruled. Judgment affirmed. -10- 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. O'DONNELL, J., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER PRESIDING 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 .