COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72383 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : WILBERT HOUSTON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 26, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CR-303894 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WILBERT HOUSTON, PRO SE CUYAHOGA COUNTY PROSECUTOR No. 284-618 BY: GEORGE J. SADD, ESQ. T.C.I. ASSISTANT COUNTY PROSECUTOR P.O. Box 901 1200 Ontario Street Leavittsburg, Ohio 44430-0901 Cleveland, Ohio 44113 -2- DYKE, P.J.: Appellant, Wilbert Houston, is appealing the trial court's denial of his motion for post conviction relief. For the following reasons, we affirm. Appellant and co-defendants Kelvin Thompson and Lance Carter were on trial for the murder of Junius Chaney. After five prosecution witnesses had testified, co-defendant Carter pled guilty to obstruction of justice and agreed to testify as a state's witness. Appellant was found guilty of aggravated murder. On direct appeal, it was held that the trial court did not err in permitting Carter to testify as a state's witness, although Carter had heard the testimony of the other state's witnesses and had heard conversations between Mr. Houston and Houston's attorneys. See State v. Houston (April 27, 1995), Cuyahoga App. No. 67049, unreported. Prosecutorial misconduct was assigned as error on appeal, based on the prosecutor's statements in closing arguments and the prosecutor's re-direct examination of Lance Carter. Id. Appellant's conviction was affirmed. Id. In his motion for an evidentiary hearing, appellant submitted affidavits sworn to by Patilla Houston and Anderson Houston. These two individuals attended the appellate oral arguments in this case. They averred that during oral argument the prosecuting attorney who handled the trial and appeal stated that Lance Carter was a snitch from the beginning yet allowed Carter to sit in on the trial as a co-defendant. Appellant's motion for post conviction relief was denied on -3- the grounds of res judicata and failure to submit evidentiary documents containing sufficient operative facts demonstrating petitioner was entitled to relief. I. Appellant's first assignment of error states: PROSECUTORIAL MISCONDUCT DENIED PETITIONER OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT OF THE UNITED STATES CON- STITUTION WHEN PROSECUTOR PLACED PETITIONER'S CO- DEFENDANT LANCE CARTER, IN PETITIONER'S TRIAL AS AN INFORMANT. If an issue was or could have fairly been raised on direct appeal without resort to evidence dehors the record, the doctrine of res judicata precludes consideration of the issue in a petition for post conviction relief. State v. Cole (1982), 2 Ohio St.3d 112, State v. Perry (1967), 10 Ohio St.2d 175. Even if an issue was assigned as error on appeal, the defendant may raise the issue in a petition for post conviction relief if the issue could only be fairly determined from matters outside the record. See State v. Smith (1985), 17 Ohio St.3d 98, 101. In this case, the issue of whether the trial court erred by allowing Carter to testify was decided on direct appeal. In his petition for post conviction relief, appellant asserts prosecu- torial misconduct for permitting an informant to remain as a co- defendant. This argument is based on the prosecutor's statement at oral argument, which is not a part of the trial court record. See Walker v. Mobil Oil Corp. (1976), 45 Ohio St.2d 19, 21. The issue of whether prosecutorial misconduct occurred by allowing the infor- mant to remain a co-defendant can only be fairly determined from -4- matters dehors the record. See United States v. Klein (1977), 546 F.2d 1259. The issue is not res judicata. Nonetheless, the record fails to establish that appellant suffered prejudice from Carter's mid-trial plea agreement with the state which included his subsequent testimony. Appellant's claim of prejudice is based upon the following as set forth in the affidavit of Patilla Houston which was appended to appellant's petition for post-conviction relief: I was at the oral arguments for Wilbert Houston, on March 8, 1995, in the Eighth District Court of Appeals, in downtown Cleveland, Ohio 44113. At the oral arguments in State of Ohio v. Houston, Case no. 67049, on March 8, 1995, the prosecutor *** said that, Lance Carter, who was Wilbert's co-defendant in his trial in the Common Pleas Court, was a snitch from the beginning, and the Judges [said during oral argument in the direct appeal], you mean to tell me, you let Lance Carter, sit in as a co-defendant, listen to the witnesses, then turn around and testify against his co- defendants, and you knew that he was an informant from the start, [the prosecutor explained that there was] a case from New York like this, so, the Judges said, this is not New York, this is Ohio. Then all three Judges, Judge DYKE, Judge KARPINSKI, and Judge SWEENEY, said that Wilbert, and his co-defendant didn't get a fair trial in the Common Pleas Court. At the outset, it is important to note that a court speaks only through its journal. See State v. King (1994), 70 Ohio St.3d 158, 162. Consequently, remarks of this court during oral argument are not its official pronouncements and lack the force of law. Moreover, we are well-advised to refrain from endorsing any rule of law which would deter scholarly debate during hearings before this court by imbuing such discourse with finality or the full force of law. Such debate must always precede a reasoned disposition on -5- appeal. Further, and more basically, it is apparent that the panel hearing the direct appeal premised the remark upon the assumption that Carter had in fact improperly disclosed information. But this assumption again begs the initial question, i.e., what did Carter improperly divulge to the state? Ultimately, the panel hearing appellant's direct appeal refused to presume that permitting Carter to testify constituted prejudicial error. State v. Houston (April 27, 1995), Cuyahoga App. No. 67049, unreported, at 5-6. Herein, appellant additionally offers the conclusory label of Carter as a snitch, but does not offer evidence of any actual disclosure. It is this failure of proof which is fatal to the instant petition for post-conviction relief. That is, the petition presented no evidence as to how appellant was prejudiced by Carter's participation as a co-defendant in the trial. See State v. Smith (1984), 14 Ohio St.3d 13, 14, State v. Hill (1996), 75 Ohio St.3d 195, 203, U.S. v. Kilrain (C.A. 5 1978), 566 F.2d 979, 982 citing Weatherford v. Bursey (1977), 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30. Accordingly, this assignment of error is overruled. II. Appellant's second and third assignments of error are identi- cal. They state: PROSECUTORIALMISCONDUCT DENIED PETITIONER DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Appellant argues in his second assignment of error that the -6- prosecution failed to disclose exculpatory evidence. The prosecu- tion failed to disclose that state's witness Jackie Sanders was a probation violator. Appellant submitted a copy of a page from the Daily Legal News, stating that Sanders was found to be a probation violator in December, 1994, eleven months after appellant's trial. The prosecutor has a duty to disclose evidence known to the prosecutor which is material to the defendant's guilt. Brady v. Maryland(1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. State v. Johnston (1988), 39 Ohio St.3d 48. Evidence is material if there is a reasonable probability that the outcome would be dif- ferent had the evidence been disclosed. Johnston, supra, United States v. Bagley (1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. The prosecutor had no duty to disclose the probation violation because the prosecution could not have known of the probation violation determination, made eleven months after appellant's trial. Additionally, Sanders testified she had been convicted of drug trafficking, welfare fraud and possession of criminal tools. She admitted recently using drugs, in violation of her probation. Given that this information was before the trier of fact, there is not a reasonable probability that a different result would have been reached had the jury known of the court's finding that Sanders violated her probation. Appellant has not shown that the prose- cution withheld material evidence in its possession. Appellant's second assignment of error lacks merit. Appellant's third assignment of error asserts that the prose- -7- cutor failed to disclose that there was another suspect. Appellant submitted a copy of a Cleveland Police Department computer print out, in which the description of the suspect does not match appel- lant's description. The print out is not authenticated by affi- davit or otherwise, and is not proper evidence. See Evid. R. 901, 902. Furthermore, appellant has not demonstrated that there is a reasonable probability that, had this document been disclosed, the result of the proceedings would have been different. There is no evidence linking this unnamed suspect to the crime. Cf. Johnston, supra. This suspect could be a case of mistaken identity or a lead abandoned by the police. See Moore v. Illinois (1972), 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. Appellant argues that the prosecution covered up part of the document, but presents no evidence to support his speculation. Appellant's third assignment of error lacks merit. Accordingly, these assignments of error are overruled. III. Appellant's fourth, fifth, sixth and seventh assignment of error are identical. They state: PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, WHICH VIOLATED PETITIONER'S SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION. On direct appeal, appellant argued he was denied effective assistance of counsel for counsel's failure to object to jury instructions,failure to file a motion to suppress statements made by Carter and failure to request separate trials. In his petition for post conviction relief, appellant raised different reasons why -8- he did not receive effective assistance of counsel. Appellant asserts in his fourth assignment of error that his counsel failed to use the Coroner's verdict to impeach the testi- mony of eyewitness Michael Wilmore. Wilmore's testimony indicated the shooting occurred about 1:30 a.m. and the police arrived around 2:05 a.m. The Coroner's Verdict stated that the victim arrived at the hospital at 1:18 a.m. and was pronounced dead at 1:44 a.m. At the trial, Deputy Coroner Heather Raaf testified as to the times stated in the Coroner's Verdict. This assignment of error could have been raised on appeal, so it is barred by res judicata. See State v. Cole, supra. Appellant's fifth assignment of error asserts that his counsel failed in an essential duty by failing to secure and use the police report, which gives a description of another suspect. . . . in a petition for post-conviction relief which asserts ineffective assistance of coun- sel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107. In this case, appellant failed to show that he was prejudiced by his attorney's failure to obtain and use the police report. As discussed above, the police report does not indicate that there is any evidence connecting this suspect to the crime. The suspect may have been a false lead. Appellant has not shown that there was a reasonable probability that, had his attorney discovered and used the report, the result of appellant's trial would have been different. See -9- Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, State v. Bradley (1989), 42 Ohio St.3d 136. Additionally, the police report was not authenticated. Appellant's fifth assignment of error lacks merit. Appellant's sixth assignment of error asserts that his counsel failed to subpoena the records of the 911 call made by Michael Wilmore. Appellant submitted a letter written by appellant to the clerk's office and an affidavit signed by appellant, requesting the 911 records. There was no evidence dehors the record to support appellant's contention that he received ineffective assistance of counsel for failure to request the 911 records. This issue could have fairly been raised on direct appeal and is res judicata. Appellant's sixth assignment of error lacks merit. Appellant claims in his seventh assignment of error that his trial counsel failed to obtain an expert witness to testify concerning guns, angles, etc. . Appellant asserts that Michael Wilmore's testimony as to where and how the victim and the assailant were standing could not be reconciled with the deputy coroner's testimony as to how the bullets entered the victim's body. Appellant does not present any evidence dehors the record to support this assignment of error. This issue could have been raised on direct appeal, so it was res judicata. Appellant's seventh assignment of error lacks merit. Accordingly, appellant's fourth, fifth, sixth and seventh assignments of error are overruled. IV. -10- Appellant's eighth assignment of error states: THE TRIAL COURT ERRED IN FAILING TO GRANT PETITIONER AN EVIDENTIARY HEARING. A hearing on a motion for post conviction relief is only required if the petition, supporting affidavits, files and records of the case show that there are substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107, 110. As discussed above, appellant's petition, affidavits and the records of the case do not show that appellant was entitled to post conviction relief. Accordingly, this assignment of error is overruled. V. Appellant's ninth assignment of error states: THE CUMULATIVE EFFECT OF ERRORS DENIED PETITIONER DUE PROCESS OF LAW. Although an error may not be prejudicial on its own, the cumulative effect of numerous errors may result in prejudice to the defendant. See State v. Muscatello (1977), 57 Ohio App.2d 231, U.S. v. Parker (C.A.6 1993), 997 F.2d 219. In this case, appellant has not shown that any prejudice occurred from any of the errors alleged in his petition for post conviction relief. The appellant's petition was not sufficient to show that appellant was entitled to post conviction relief, and many of the issues raised were res judicata. The trial court did not err in denying appel- lant's motion for post conviction relief. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -11- -12- 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. MCMONAGLE, J. AND PATTON, J., CONCUR. ANN DYKE 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 .