COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72229 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND TIMOTHY FORTSON, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-341112 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RANDI MARIE OSTRY Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: NICHOLAS K. THOMAS 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- KARPINSKI, J.: Defendant-appellant, Timothy Fortson, appeals from a jury verdict finding defendant guilty of aggravated murder and aggravated robbery. On appeal, defendant raises four assignments of error which argue (1) the court failed to investigate defendant's claims of ineffective assistance of counsel, (2) the court failed to instruct the jury on involuntary manslaughter, (3) defendant received ineffective assistance of counsel, and (4) defendant was denied a fair trial. We find no merit to these arguments and affirm the judgment of the trial court. The relevant facts follow. Defendant was charged with aggravated robbery and aggravated murder of the victim, Bobbie Bradley, a restaurant worker coming home to celebrate his daughter's birthday. The key witness for the state was T.J. Royster, who testified that he and defendant drank gin and smoked marijuana all day before deciding to rob someone. They waited in the bushes when the victim came walking by Patrick Henry School. Royster saw defendant run up to the victim and pull out his gun. After they exchanged words the victim threw up his hands and ran. Defendant then shot him, ran up to him, and demanded money. As the victim lay on the ground, defendant shot him again and kicked him two times in the throat. Royster and defendant then took off running. The jury returned a guilty verdict on all counts, and the court sentenced him to life without the possibility of parole. Defendant timely appeals, presenting four assignments of error. -3- I. THE TRIAL COURT FAILED TO INQUIRE OF THE APPELLANT AS TO HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL. In this assignment of error, defendant argues that the trial court erred by failing to pursue defendant's claim of ineffective assistance of counsel. Specifically, defendant references the statement he made during the mitigation phase of the proceedings. Defendant stated as follows: We haven't met because I was sitting down there quietly, but I really wanted to get on the stand and testify on my own behalf, but I never had a chance because my lawyer didn't even want me to get up here to prove my innocence and bring my witnesses to the trial. I wanted to get up on the stand and testify for myself, that I did not do this crime, and I never had a chance. I counseled with my lawyer several times to get on the stand before it got this far to me on my own behalf to bring my own witnesses to this case that I did not do this. * * * My lawyers my lawyer did a good job, but he didn't he didn't want me to get up here and say that I was innocent. He didn't want my witnesses to come in here that will help me, and they came, and when they come to testify for me, he told me they was too late. He told me they was too late to get on the stand and save my life to help me. (Tr. 1283-1285.) In the syllabus of State v. Deal (1969), 17 Ohio St.2d 17, the Supreme Court of Ohio described the duty of the judge in this situation: Where, during the course of his trial for a serious crime, an indigent accused [sic] questions the effective- ness and adequacy of assigned counsel, by stating that such counsel failed to file seasonably a notice of alibi or to subpoena witnesses in support thereof even though requested to do so by accused, it is the duty of the trial judge to inquire into the complaint and make such inquiry a part of the record. The trial judge may then require the trial to proceed with assigned counsel -4- participating if the complaint is not substantiated or is unreasonable. In the case at bar the trial court conducted an inquiry regarding defendant's accusation, which the defense counsel specifically addressed on the record: Based upon what Mr. Fortson [Defendant] said in his unsworn statement, the unsworn statement that he made to the jury, I would like to proffer for the record that the witnesses that he asked us gave to us in order to be potential witnesses for him were interviewed by our investigator, Chris Gianni, who went out and spoke with Miss McAffy her first name I think is Tamika or Shamika, Mary McAffy, which is the mother, relative to Mr. Fortson's whereabouts the date of the murder and the day thereafter. We also spoke to Tavia relative to seeing Tim on the night in question. Should Tavia be called as a witness, she indicated to me, after I personally interviewed her, that she would have put Tim Fortson at the hut minutes before the shooting took place. The record should further indicate three or four personal attempts were made to get Mr. Elisha Harris to come to court, one by Debby Watkins, one by Michelle Fortson, and one by Darnella, also known as Jennifer Benson. Two subpoenas were issued for his appearance as well, and he never showed up. I also interviewed Darnella, and she indicated that she too was at the hut with Tim and T.J. minutes before the shooting took place at Patrick Henry. These witnesses were all subpoenaed, and the witnesses that were mentioned appeared at court, except for Mr. Harris, on Friday, after the on Thursday, after the State's case was completed. A conference was had with our client, at which time he indicated to us that it was his desire not to testify, and that based upon the information that we were receiving from the witnesses, not to call any witnesses in the case. The decision that was reached by the defendant not to testify in the case in chief was to enable him to appear before the jury and give whatever statement that he desired to give, without having previously been cross- examined relative to the facts of the actual hearing. -5- (Tr. 1322-1324.) This detailed statement, which covers considerable ground, presented to the trial court the issues regarding any conflict between defendant and his trial counsel and resolved them. When faced with accusations of ineffective assistance of counsel, the trial court may conduct an investigation that is brief and minimal. State v. Prater (1990), 71 Ohio App.3d 78. In the case at bar, no further inquiry was necessary. A trial judge could reasonably be satisfied with the explanation defense counsel gave. Because the record shows an inquiry occurred and an adequate explanation was provided, defendant has not established reversible error regarding his accusations of ineffective assistance of counsel. The first assignment of error is overruled. II. THE APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. In this second assignment of error, defendant argues that the trial court erred by not instructing the jury on involuntary manslaughter. This argument fails. Involuntary manslaughter is a lesser included offense of aggravated murder. The distinguishing characteristic between the two is the required mental state for aggravated murder: purposely causing the death of another with prior calculation and design. State v. Bailey (1992), 90 Ohio App.3d 58. In order to warrant an instruction on a lesser included offense, the defendant must present sufficient evidence to allow the jury to acquit on the -6- greater charge and find defendant guilty on the lesser. State v. Deem (1988), 40 Ohio St.3d 205. In the case at bar, the evidence does not support an involuntary manslaughter charge. Defendant did not present any evidence of self-defense, accident, or provocation that would support a finding of a non-purposeful killing of the victim. Moreover, the state presented undisputed evidence that a gun was used in the shooting and robbery of an unarmed victim. Accordingly, the trial court did not err in failing to instruct the jury on involuntary manslaughter. The second assignment of error is overruled. III. THE APPELLANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. In this assignment, defendant argues that he was denied effective assistance of counsel when his trial counsel failed to object to two items of evidence: (1) the police report containing evidence that defendant's father believed defendant was involved in the murder, and (2) the testimony regarding the function of the Cleveland Police ROPE unit. To succeed on a claim of ineffective assistance of counsel requires a showing that: (1) counsel's assistance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1983), 466 U.S. 668, 694. The Court further elaborated: -7- Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Id. at 690 (citations omitted). That defense counsel failed to object when the state introduced evidence from the police report does not rise to the level of ineffective assistance, because it was defense counsel who introduced the police report in order to cross-examine the state's key witness, Royster. This attempt to impeach Royster through the report was defense counsel's main defense. Accordingly, it was a defense tactic to introduce the police report even though it allowed the state to introduce a statement by Royster that defendant's father thought that defendant had something to do with the crime. The failure to object to testimony describing the ROPE unit also does not amount to ineffective assistance. Explaining that he worked in the ROPE unit, Detective Taliano testified that ROPE is an abbreviation for Repeat Offenders Program Enforcement. Defendant claims that his counsel should have objected to this statement, because it gave the jury the impression that defendant had a criminal record. This argument fails. Detective Taliano also testified that the ROPE unit assists in apprehending persons with warrants for their arrest, and the unit provided this -8- assistance in the case at bar. Accordingly, defendant was not necessarily prejudiced by this testimony. IV. THE APPELLANT DID NOT RECEIVE A FAIR TRIAL AND DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. In this assignment, defendant vaguely argues that all the errors below prevented him from receiving a fair trial. Defendant has not separately argued this assignment, however, by pointing to specific errors in the record. See App.R. 16(A); App.R. 12(A)(2). This assignment is overruled. Judgment affirmed. -9- 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. ANN DYKE, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .