COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72330 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : DERRICK EVANS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. CR-216710 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Diane Smilanick Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Michael J. Benza David H. Bodiker Luz V. Lopez-Ortiz Linda E. Prucha Assistant State Public Defenders Ohio Public Defenders Commission 8 East Long Street, 11th Floor Columbus, Ohio 43215-2998 -2- NAHRA, P.J.: Appellant, Derrick Evans, appeals the denial, without hearing, of his motion for postconviction relief. Appellant was indicted on April 9, 1987, on two counts of aggravated murder. Each count carried an aggravated felony specification, a mass murder specification, a gun specification, a felony murder specification, and a repeat murder specification. Appellant was also indicted for aggravated burglary, attempted murder, and two counts of aggravated robbery. At trial it was determined that Evans went to the home of Marcellus Williams accompanied by two acquaintances, Michael Frazier and Wayne Frazier. With Marcellus in his home were Derek Speights, his son, JoAnn Richards, his girlfriend, and her son Albert. After a few minutes of conversation, suddenly appellant jumped up from the couch, put a gun to Marcellus' head, and demanded money. Wayne Frazier then ran over to JoAnn Richards and began stabbing her. Appellant then knocked Speights down, and Michael Frazier tied Speights' hands with a towel and began stabbing him. Speights was also hit on the head with a gun. Appellant then knocked Williams down, tied him up with a telephone cord, and proceeded to stab and hit him. During this entire altercation, appellant was shouting orders and directing the actions of both Wayne and Michael Frazier. The aforementioned events led to the deaths of both Williams and JoAnn Richards. Both Speights and Albert Richards survived and provided testimony. -3- On October 3, 1987, the jury found appellant guilty of all charges except the felony murder specification on both counts of aggravated murder. The jury also recommended that appellant be sentenced to death. At trial, appellant was represented by attorneys Stuart Saferin and John Carson. The court then sentenced appellant to death on the aggravated murder counts and to 15 to 25 years on each of the remaining four counts. Appellant's judgment of conviction and sentence of death was affirmed by this court; however, appellant's conviction for the gun specification was reversed. State v. Evans (June 7, 1990), Cuyahoga App. No. 54883, unreported. In that appeal appellant was represented by attorneys Joan Bour-Stokes and Jane P. Perry. In State v. Evans (1990), 63 Ohio St.3d 231, 586 N.E.2d 1042, the Supreme Court of Ohio affirmed appellant's convictions and death sentence. Appellant filed a petition for writ of certiorari with the United States Supreme Court which was denied on October 5, 1992. On May 13, 1994, appellant's execution was stayed pending exhaustion of his postconviction relief. On March 6, 1997, the state's motion to dismiss appellant's petition for postconviction relief was granted, and on March 17, 1997, pursuant to R.C. 2953.21(C), the court's final findings of fact and conclusions of law were filed. Appellant assigns eleven errors for our review. I. -4- Appellant's first assignment of error provides: I. THE TRIAL COURT ERRED WHEN IT DISMISSED MR. EVANS' PETITION TO VACATE OR SET ASIDE JUDGMENT AND/OR SENTENCE WITHOUT FIRST REVIEWING THE COMPLETE RECORD OF THE CASE IN VIOLATION OF OHIO REVISED CODE SECTION 2953.21. Absent a showing of abuse of discretion, a reviewing court will not overrule the trial court's finding on a petition for post-conviction relief which is supported by competent and credible evidence. State v. Mitchell (1988), 53 Ohio App.3d 117, 119, 559 N.E.2d 1370. An abuse of discretion connotes more than an error in law or judgment; it implies conduct that is arbitrary, capricious, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144. R.C. 2953.21 provides in pertinent part: (C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript. *** If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. On review, an appellate court must presume regularity of the proceedings below unless the appellant produces evidence to the contrary. State v. Edwards (1987), 31 Ohio App.3d 114, 508 N.E.2d 1046. As a result, unless appellant can demonstrate, in an overt -5- manner, that the trial court did not comply with R.C 2953.21(C), this assignment of error will be overruled. In this error appellant maintains that the trial court failed to review the appellant's record before ruling on appellee's motion to dismiss. In support of this contention, appellant offers a newspaper article and an affidavit of a criminal investigator who assisted in the preparation of this case. This investigator inspected the file and copied the logbook of signatures signifying those individuals who had received and reviewed the file. Contrary to the investigator's affidavit, this court utilizes a sign-out sheet and not a logbook to designate those individuals who receive each file. Each sign-out sheet is one of hundreds that serve their purpose until filled and then are thrown away. Thus, the affidavit does not establish the trial judge or an aide did not retrieve the record for review by the court. The newspaper article which was submitted and cited by appellant as evidence that Judge Callahan could not locate the files has been misconstrued. In the interview, Judge Callahan stated to the Plain Dealer that he recalled denying appellant's motion about a year ago, but he was unable to locate the files. Appellant maintains that the files referred to the appellant's entire appeals record; however, this conclusion is unwarranted especially since the trial court dealt fully with all claims of the defendant. -6- Since appellant failed to provide evidence to rebut the presumption of regularity at the trial court level, there was no abuse of discretion and this assignment of error is overruled. II. Appellant's second and eleventh assignments of error are interrelated in both law and fact and will thus be treated together. These assignments of error state: II. THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS ON THE BASIS OF RES JUDICATA IN VIOLATION OF RULES TWELVE AND FIFTY-SIX OF THE OHIO RULES OF CIVIL PROCEDURE. XI. THE TRIAL COURT ERRED IN APPLYING A SUFFICIENCY OF THE EVIDENCE STANDARD IN REVIEWING MR. EVANS' PETITION. In his second and eleventh assignments of error, Evans alleges that the trial court erred in using the sufficiency of the evidence standard in granting the state's motion to dismiss, and failed to state the grounds upon which this decision was rendered. A postconviction hearing is a civil proceeding governed by the Rules of Civil Procedure. State v. Nichols (1984), 11 Ohio St.3d 40, 42-43, 463 N.E.2d 375, State v. Pless (1993), 91 Ohio App.3d 197, 632 N.E.2d 524. In such a hearing, the petitioner bears the burden of proof. Since postconviction hearings are civil in nature, the petitioner may prove the claim by a preponderance of the evidence, rather than evidence beyond a reasonable doubt. See, State v. Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540; State v. Brown (Mar. 22, 1991), Tuscarawas App. No. 90AP090054, unreported. -7- Under R.C. 2953.21, a postconviction petition for relief may be dismissed without a hearing if the petitioner fails to introduce with his petition evidentiary material setting forth sufficient operative facts that demonstrate substantive grounds for relief. R.C. 2953.21(C), supra, at p. 4; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. Since a petition for post-conviction relief under R.C. 2953.21 is a civil proceeding, summary judgment granted pursuant to R.C. 2953.21(D) is governed by Civ.R. 56. State v. DePew (1994), 97 Ohio App.3d 111, 113, 646 N.E.2d 250, citing Bosticv. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881. Under Civ.R. 56(C), a finding of summary judgment is proper when, after viewing the evidence in favor of the non-moving party, the court concludes there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, and that conclusion is adverse to the party against whom the motion is made. Id., citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, 47. Moreover, a trial court, in so ruling, need not discuss every issue raised by appellant or engage in an elaborate and lengthy discussion in its findings of fact and conclusions of law. State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 530 N.E.2d 1330. These findings need only be sufficiently comprehensive and pertinent to the issue to form a basis upon which the evidence supports the conclusion. State v. Clemmons (1989), 58 Ohio App.3d 45, 47, 568 N.E.2d 705. -8- Although petitioner did bring forward new evidence which, if found to be true, would entitle him to relief, the record demonstrates and negates the validity of said evidence. As a result, the trial court properly found, pursuant to 2953.21(C), that the evidence presented was insufficient to demonstrate substantive grounds for relief and dismissed the petition, pursuant to 2953.21(D) and Civ.R 56(C). Moreover, the trial court sufficiently addressed each alleged error and stated in its findings of fact and conclusions of law the reasons for their dismissal. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: III. THE TRIAL COURT INAPPROPRIATELY APPLIED RES JUDICATA TO A CLAIM IN WHICH EVIDENCE DEHORS THE RECORD EXISTS BUT IS OUTSIDE THE REACH OF MR. EVANS. In this assignment of error appellant asserts that the trial court inappropriately applied the doctrine of res judicata and, as a result, erred in dismissing his petition for postconviction relief. Appellant maintains that because his arraignment was held behind closed doors, his constitutional right to a public trial was violated. When a petitioner seeks postconviction relief on an issue that was raised or could have been raised on direct appeal, the petition is properly denied by the application of the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. See, also, State v. Ishmail -9- (1981), 67 Ohio St.2d 16, 18, 423 N.E.2d 1068. In order to overcome the res judicata bar, the petitioner must show, through the use of extrinsic evidence, that he could not have appealed the original constitutional claim based on the information in the original trial record. State v. Combs (1994), 100 Ohio App.3d 90, 97-98, 652 N.E.2d 205. This evidence outside the record is necessary so that petitioner may prove that after conviction he obtained evidence not previously available to him that will prove the claim he is seeking. Id., State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448 N.E.2d 452. Further, in State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, it was determined that [u]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claim of lack of due process that was raised or could have been raised by the defendant at trial, which resulted in a judgment of conviction, or on an appeal from that judgment. Appellant's claim that his arraignment hearing was held behind closed doors denying him a hearing and violating his constitutional rights is a due process concern which should have been raised at his original trial or on direct appeal. Since due process violations that could have been raised on direct appeal are barred -10- from consideration in a petition for postconviction relief, the trial court did not err in applying the doctrine of res judicata. Accordingly, these assignments of error are overruled. IV. Appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED IN DISMISSING MR. EVANS' CLAIM THAT ALBERT RICHARDS WAS INCOMPETENT AS A MATTER OF LAW. In this assignment of error appellant is arguing that the trial court erred in determining that Albert Richards, a seven- year-old witness, was competent to testify. This claim was addressed within appellant's direct appeal to this court, see State v. Evans, supra, at p. 3, unreported at 13, and again by the Ohio Supreme Court. See State v. Evans, 63 Ohio St.3d at 246. Furthermore, since competency is a matter to be determined at voir dire, which is part of the trial record, and a trial court is in the best position to observe a child witness as to appearance, demeanor, manner, and coaching, the determination by the trial court will not be disturbed absent an abuse of discretion. State v. Workman (1984), 14 Ohio App.3d 385, 389, 471 N.E.2d 853. See, also, State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483. The trial court did not abuse its discretion and properly determined that this claim was barred by the doctrine of res judicata. This assignment of error is overruled. V. -11- Appellant's assignments of error five, six and ten are interrelated in both law and fact and will thus be treated together. V. THE TRIAL COURT ERRED IN DISMISSING MR. EVANS' CHALLENGE TO THE PROPORTIONALITY OF HIS SENTENCES AS RECENTLY REVEALED EVIDENCE PROVES MR. EVANS DID NOT ACTUALLY KILL ANYONE. VI. THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS FOR RELIEF ALLEGING VIOLATIONS OF DISCOVERY UNDER BRADY V. MARYLAND. X. THE TRIAL COURT ERRED IN DENYING MR. EVANS' DISCOVERY. In these assignment of errors, appellant argues that his case was prejudiced when the state failed to disclose witness statements during trial and that the trial court erred in denying several of appellant's motions for discovery, for the release of evidence, and for preservation of the evidence. Appellant maintains that recent evidence reveals that Evans did not commit the murder of which he stands convicted. In fact, appellant asserts that this evidence not only proves his innocence, but also reveals who the killer was. The denial of due process may be a sufficient basis for a petition for postconviction relief. See, State v. Walden (1984), 19 Ohio App.3d 141, 483 N.E.2d 859, paragraph four of the syllabus. In Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, established that the prosecution's failure to disclose evidence favorable to the accused upon request constitutes a violation of the Fourteenth Amendment's due process guarantee of a fair trial when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. -12- Id.; see, also, State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898. This opinion was incorporated into Ohio's Crim.R. 16(B)(1)(f), which provides [u]pon motion of the defendant before trial the court shall order the prosecuting attorney to disclose to counsel for the defendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material to guilt or punishment. Undisclosed evidence is material for the purposes of Brady, only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome. United States v. Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 3383; see, also, State v. Wickline (1990), 50 Ohio St.3d 114, 552 N.E.2d 913. The defense carries the burden of proving a Brady violation and thereby a denial of due process. Id. Moreover, the Brady rule allows the court to consider the possible effect of allegedly suppressed evidence on the presentation and preparation of the defense. Bagley, 473 U.S. 667, 683, 105 S.Ct. 3375, 3384. However, this does not entail the allowance of pure conjecture; the effect must be assessed *** with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense *** been supplied with the statement. Bagley, 474 U.S. at 676, 105 S.Ct. at 3380. This rule also applies to impeachment evidence. Id. A reversal is not required when a -13- mere combing of the prosecutor's files after the trial disclosed evidence possibly useful to the defense but not likely to have changed the verdict. Giglio v. United States (1972), 405 U.S. 150, 154, 92 S.Ct. 763. In support of these contentions, appellant offers excerpts from a previously undisclosed supplementary police report prepared by detectives Zalar, Bornfeld, Goldstein and Moore, dated March 27, 1987. In this report, witnesses John Davis and Glen Hlavsa reported to police that they observed the victim Speights on the sidewalk while he was being attended to by EMS and he told them that TWIN did this to him and his father and his girlfriend up in the apartment. Then they took him away. The detectives later learned that the person identified by the moniker TWIN was Walter Frazier. These detectives also discovered that it was Wayne Frazier who was seen with a handgun earlier that afternoon, not Evans. In the same report, detectives Zalar and Bornfeld described picking up young Albert Richards and his grandmother, Myrtle Richards, so that Albert could view a lineup. This lineup consisted of five black males of approximately the same size and age. Included in the lineup was Wayne Frazier placed in the number two slot. After Albert viewed the lineup, the report states ALBERT RICHARDS, picked number two, Wayne Frazier, and stated `thats (sic) the man, his name is Twin, and he stabbed my mother.' Albert went on to say after viewing a fold-up knife in the homicide -14- unit being held as evidence that's the knife Twin had and I saw him stab my mother with it. In the second page of the same report, Albert Richard's statement of the events occurring on March 26, 1987, was recorded. In that statement Albert said that he went to bed around 2100 hours only to be awakened by a loud noise. Upon awakening, [H]e looked into the living room, and he saw Twin, who he had seen about three times in the past, stabbing his mother on the couch. He saw his father laying on the floor face down, his father was making some kind of noise. He saw Twin, walk over to his father and kick him. This caused his fathers (sic) eye to fall out of his head. He then heard Twin yelling someones (sic) name and then started stabbing his mother in the stomach. He said that TWIN, saw him and motioned him to go into the bedroom. He went into his mothers (sic) room and hid under the bed. After a careful review of the original trial transcript, specifically with regard to the testimony of Albert and Derek Speights, it is clear that the information provided to the police in these supplemental reports was fully disclosed at trial. Both Speights' and Albert's testimony indicated that William Frazier stabbed Albert's mother. Speights further testified that Michael Frazier, William's brother, was the person who stabbed him. However, Speights stated that in each instance William's brothers were reacting to the direction of Evans. Further, Speights' testimony indicated that the events as they occurred were part of a carefully orchestrated plan. Moreover, the jury's verdict specified that although Evans was guilty of the aggravated murders occurring during the course of an aggravated robbery, he was not the principal offender. -15- As a result, the evidence in the supplementary police report indicating that Evans did not actually stab anyone was presented at trial for the jury's consideration. Evans experienced no prejudice by not receiving these documents. Accordingly, these assignments of error are overruled. VI. Appellant's seventh assignment of error states: VII. THE TRIAL COURT ERRED IN DISMISSING PETITIONER'S CLAIM OF AN INVALID AGGRAVATING CIRCUMSTANCE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS NINE AND SIXTEEN OF THE OHIO CONSTITUTION. Evans is arguing in this assignment of error that the trial court, pursuant to R.C. 2929.04(A)(5), improperly used his prior murder specification as an aggravating circumstance. Appellant has already raised this issue on direct appeal to this court, see State v. Evans, supra, at p. 8; and, as a result, this claim is barred by the doctrine of res judicata. Accordingly, this assignment of error is overruled. VII. Appellant's eighth assignment of error states: VIII. THE TRIAL COURT ERRED IN DENYING MR. EVANS' CLAIM THAT HE WAS INCAPABLE OF FORMING THE REQUISITE SPECIFIC INTENT TO COMMIT AGGRAVATED MURDER. Appellant asserts that due to his mental, as well as medical deficiencies, he was incapable of forming the necessary mens rea for aggravated murder. In support of this allegation, appellant offered an affidavit of Dr. Kristen Haskins to the trial court. The trial court dismissed this action as res judicata. -16- Appellant's mental health, competency, and capacity for understanding have been constant issues discussed throughout the appeals process. Specifically, appellant argued to both this court and the Ohio Supreme Court that the death penalty was an improper form of punishment for a man possessing an IQ of 64. See, State v. Evans, supra, at pp.7-8; State v. Evans, 63 Ohio St.3d at 243. In resolving this issue, both courts determined that the IQ of a criminal is properly addressed and may be used only as a mitigating factor. The courts went on to say that the execution of a mentally incapacitated person has been determined to not be categorically prohibited by the Eighth Amendment. Penny v. Lynaugh (1989), 109 S.Ct. 2934. The Supreme Court went on to address the appellant's capacity to appreciate the criminality of his conduct, and his ability to conform to the law. In doing so the court determined that expert testimony regarding those matters was also properly given, but again, as long as it is used only as a mitigating factor. See, State v. Evans, 63 Ohio St.3d at 244. At the trial court level, the jury was properly advised as to the mental deficiencies of appellant and further instructed that it may only be used as a mitigating factor in determining his guilt and punishment. After deliberation, the jury found appellant guilty and recommended a sentence of death. Since the jury had the opportunity to properly weigh appellant's concerns, and appellant should have raised this argument on direct appeal, this assignment -17- of error is without merit and barred by the doctrine of res judicata. Accordingly, appellant's eighth assignment of error is overruled. VIII. Appellant's ninth assignment of error states: IX. THE TRIAL COURT ERRED IN DISMISSING MR. EVANS' CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL. Appellant maintains that his counsel's actions during the sentencing phase fell below the level of a reasonable standard of practice when he failed to pursue and present mitigating factors, to his prejudice. A presentation and judgment concerning ineffective assistance was already determined when appellant's new counsel raised this issue to this court on appeal. See State v. Evans, supra, at p.9 & p. 21, and again on appeal to the Ohio Supreme Court, see State v. Evans, 63 Ohio St.3d at 247. Furthermore, it is well settled that any new claim of ineffective assistance of trial counsel is barred from being raised in a postconviction petition by the doctrine of res judicata where petitioner was represented by new counsel on appeal and the alleged ineffectiveness is on the record. Cole, supra. As a result, this argument is barred by the doctrine of res judicata and appellant's ninth assignment of error is overruled. Judgment affirmed. -18- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA PRESIDING JUDGE KARPINSKI, J., and MICHAEL J. CORRIGAN, J., CONCUR. 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 .