COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72484 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : REGINALD JELLS : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CR-217570 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ARTHUR A. ELKINS, ESQ. DAVID H. BODIKER, ESQ. CARMEN MARINO, ESQ. JENNIFER P. HITE, ESQ. ASSISTANT COUNTY PROSECUTORS RICHARD J. VICKERS, ESQ. Eighth Floor, Justice Center ASSISTANT STATE PUBLIC 1200 Ontario Street DEFENDERS Cleveland, Ohio 44114 8 East Long Street Columbus, Ohio 43266-0587 -2- DYKE, J.: Petitioner Reginald Jells appeals from the dismissal of his amended petition for post conviction relief. For the reasons set forth below, we affirm. On May 7, 1987, petitioner was indicted pursuant to a four count indictment. Count one charged petitioner with aggravated murder in connection with the death of Ruby Stapleton. This charge also contained felony-murder specifications for kidnapping and aggravated robbery. Counts two and three charged petitioner with kidnapping Stapleton and her son, Devon. Count four charged him with the aggravated robbery of Stapleton. The matter proceeded to trial before a three judge panel on August 24, 1987. Petitioner was subsequently acquitted of the aggravated robbery charge and the aggravated robbery specification following the presentation of the state's evidence. Thereafter, petitioner was convicted of aggravated murder with a felony-murder specification for kidnapping, and was also convicted of both kidnapping charges. Following a mitigation hearing, the panel sentenced petitioner to death upon the aggravated murder convic- tion, and ordered that he serve concurrent terms of five to twenty- five years for the kidnapping charges. Upon direct appeal to this court, petitioner advanced eleven errors for our review. As is relevant to the instant matter, petitioner claimed: that the trial court erred in determining that Devon, who was five years old at the time of trial, was competent to testify; that the photographic and line-up identification -3- procedures employed by police were so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification; that the evidence was constitutionally insufficient to support his convictions for aggravated murder and kidnapping; and that the trial court erred by allowing Cleveland Police Detective James Yonkers to give expert opinion evidence regarding a shoe print. This court determined that the assigned errors were without merit and affirmed petitioner's conviction and death sentence. See State v. Jells (April 20, 1989), Cuyahoga App. No. 54733, unreported. Upon further appeal to the supreme court, petitioner asserted, inter alia: that his jury waiver was constitutionally insufficient; that Devon was not competent to testify; that the photo array shown to Devon and witness Owen Banks was unduly suggestive because only petitioner's photograph was taken outdoors; that Det. Yonkers testimony was not based on a reasonable degree of scientific certainty; and that the line-up shown to witness Edward Wright was unduly suggestive and inherently unreliable because petitioner was wearing prison garb and the other men were not. The supreme court affirmed petitioner's conviction and also affirmed his death sentence following independent review. See State v. Jells (1990), 53 Ohio St.3d 22. On November 8, 1991, petitioner filed a motion to vacate his conviction pursuant to R.C. 2953.21. On April 26, 1995, he filed an amended petition. Within the amended petition, petitioner asserted twenty-seven causes of action which he maintained rendered his conviction void or voidable. -4- The trial court dismissed the amended petition for post- conviction relief without a hearing. Petitioner now appeals from this ruling and assigns ten errors for our review. For convenience and clarity, we shall combine petitioner's assignments of error where they share a common basis and shall address them out of their predesignated order. Petitioner's first assignment of error states: THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT JELLS' CLAIM THAT TRIAL COUNSEL WERE INEFFECTIVE IN THEIR REPRE- SENTATION THROUGHOUT HIS CAPITAL TRIAL. Within this assignment of error, petitioner claims that his trial counsel were ineffective in connection with: petitioner's decision to waive a jury trial; their failure to properly rebut or suppress the evidence presented by the state; their penalty phase representation; and their failure to preserve his right to speak before the death sentence was imposed. In establishing a claim of ineffective assistance of trial counsel, it is clear that a defendant must make a two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amend- ment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington (1986), 466 U.S. 668, 687. Accord State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the sylla- -5- bus. The Strickland court also cautioned courts examining the issue that: [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defen- dant to second-guess counsel's assistance after convic- tion or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful,to conclude that a particular act or omis- sion of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134(1982). *** 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 pre- sumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' Id., at 689. See, also, State v. Frazier (1991), 61 Ohio St.3d 247, 253; Debatable trial tactics do not constitute ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 49. When the claim of ineffective assistance of trial counsel is raised in a petition for post-conviction relief, the petitioner bears the burden of submitting evidentiary materials which 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, syllabus. Absent such a showing, no evidentiary hearing is necessary. State v. Pankey (1981), 68 Ohio St.2d 58, 59. Waiver of Jury Trial Petitioner asserts that his counsel informed him that a three judge panel would be best for him because of the pretrial publicity surrounding Stapleton's death and because of Devon's testimony. He further asserts that his counsel never informed him that, inter -6- alia, the three judge panel would also hear the mitigation phase, that if the matter were tried to a jury, all twelve members of the jury would have to agree to convict and sentence him, that a reviewing court would apply a presumption of correctness when reviewing certain errors. He avers, however, that his attorneys felt that a three judge panel would be best in my case because they felt that a three judge panel would not give me a sentence of death. Amended Petition for Post-Conviction Relief, Exhibit S. We find that this decision was a strategic choice. Accord State v. Woods (March 5, 1997), Medina App. No. 2589-M, unreported. Moreover, the court examined a similar argument in State v. Sowell (1991), 73 Ohio App.3d 672, 683, and stated: In his twenty-ninth cause of action, the only cause of action not heretofore addressed, Sowell challenges the knowing and intelligent nature of his waiver of a jury trial. Sowell offered in support of this contention his own affidavit, in which he averred that he executed the waiver upon trial counsel's representation that a trial before a three-judge panel would not result in the imposition of the death penalty. Sowell's "self-serving" affidavit is not, however, sufficient to rebut the record before us, which contains Sowell's written waiver in which he stated that he "knowingly, intelligently and voluntarily waive[d] and relinquish[ed] his right to a trial by Jury * * *." See Jackson, supra. Sowell was, therefore, not entitled to an evidentiary hearing on the challenge advanced in his twenty-ninth cause of action when he failed to sustain his initial burden of demon- strating substantive grounds for relief. See State v. Kapper (1983), 5 Ohio St.3d 36. Upon our determination that Sowell's petition was subject to dismissal without an evidentiary hearing, we overrule the first assignment of error. In any event, petitioner has not demonstrated how this decision resulted in prejudice to him. He does not show, and we -7- cannot say, that had this case been tried to a jury, the result would have been different. Accord State v. Woods, supra. Trial Assistance Petitioner also asserts that his trial counsel were ineffec- tive for failing to request the assistance of an eyewitness identification expert, serologist expert, and an expert to aid in the cross-examination of Det. Yonkers regarding the footprint evidence. Petitioner additionally complains that his trial attor- neys were ineffective in failing to suppress eyewitness identifi- cation testimony prior to trial and in failing to obtain records related to Devon's competency. With respect to obtaining expert assistance, it must be shown that there is a reasonable necessity for such assistance. State v. Hicks(January 29, 1993), Hamilton App. No. C-901341, unreported at 5; State v. Lott, supra, unreported, at 10. The Ohio Supreme Court in State v. Jenkins (1984), 15 Ohio St.3d 164, certiorari denied (1985), 473 U.S. 927 held: R.C. 2929.024 requires the court to provide an indigent defendant with expert assistance whenever, in the sound discretion of the court, the services are reasonably necessary for the proper representation of a defendant charged with aggravated murder. The factors to consider are (1) the value of the expert assistance to the defendant's proper representation at either the guilt or sentencing phase of an aggravated murder trial; and (2) the availability of alternative devices that would fulfill the same functions as the expert assistance sought." Id., paragraph four of the syllabus; see, also, State v. Broom (1988), 40 Ohio St.3d 277. Moreover, the remedy of post-conviction relief was not intend- ed as a vehicle for simply retrying the case but rather, was designed to redress denials or infringements of basic -8- constitutional rights. Laugensen v. State (1967), 11 Ohio Misc. 10, 12. State v. Lott, supra. Applying the foregoing, we note that when this matter was tried to the three judge panel, petitioner's trial counsel made the strategic choice of indicating at trial that it was equally plausible and consistent with the state's evidence that Devon and Stapleton got into his van voluntarily and an unknown assailant attacked Stapleton at some later time. (Tr. 488-502). Thus, trial counsel did not refute the eyewitnesses who stated that they saw petitioner with Stapleton. (Tr. 496). As to the footprint evidence, trial counsel maintained that the footprint was consistent with Stapleton being very comfortable with her surroundings. (Tr. 498). Thus, absent a complete change of strategy at this juncture, we cannot see that this expert assistance was reasonably necessary to the presentation of the trial defense. With regard to the footprint on the cardboard, outside of the van, petitioner's trial counsel strenuously argued that the rain which occurred prior to the discovery of the footprint seriously undermined the validity of this exhibit. (Tr. 500-501). In the amended petition for post conviction relief, the appended affidavit of Larry Dehus likewise emphasizes that the rain rendered this exhibit questionable. As in Jenkins, supra, "[t]he experts sought here would have been no more than consultants to counsel as opposed to sources of evidence relevant to disputed factual issues." Id., 15 Ohio St.3d at 194 -9- As to the blood, petitioner's trial counsel emphasized that no blood was found on the defendant's person despite the brutal force of the attack (Tr. 499) and that, had defendant known of the attack in his van and participated in it, he surely would have cleaned the blood from his van. (Tr. 502). Again, absent a complete change of strategy at this juncture, we cannot see that this expert assis- tance was reasonably necessary to the presentation of the trial defense. We therefore reject petitioner's contention that his trial counsel were ineffective as to these matters. Penalty Phase Ineffectiveness Petitioner next asserts that his trial counsel were ineffec- tive in failing to introduce evidence regarding his troubled family and early life and in failing to utilize expert assistance. As an initial matter, we must recognize that trial counsel is afforded broad authority in determining what evidence will be offered in mitigation. State v. Frazier (1991), 61 Ohio St.3d 247, 255. We also reiterate that post-conviction proceedings were designed to redress denials or infringements of basic constitu- tional rights and were not intended as an avenue for simply retrying the case. Laugensen v. State, supra; State v. Lott, supra. Further, the failure to present evidence which is merely cumulative to that which was presented at trial is, generally speaking, not indicative of ineffective assistance of trial counsel. State v. Combs (1994), 100 Ohio App.3d 90, 105. -10- In this matter, the mitigation presented at trial tended to focus upon petitioner's loving behavior to his family, his good behavior at school, his obedience to authority and his teachers, his strong work ethic, and his tendency to walk away from an argument. In addition, trial counsel indicated that petitioner's family had moved many times, and also presented expert opinion evidence that petitioner was of borderline intelligence and over- controlled his hostility. Finally, petitioner presented an unsworn statement in which he emphasized his work ethic, his empathy for Devon, his sadness at the tragic manner in which Stapleton must have met her death, and his disagreement with the verdict reached by the panel. Further, in its written opinion, the three judge panel observed that petitioner had presented evidence of, inter alia, character, family relationships, employment history, and emotional stability. Examining the evidence now offered dehors the record, we find that a certain measure of the evidence which petitioner now claims should have been admitted to be cumulative of what was presented at trial, i.e., the frequent moves, change of caregivers, borderline intelligence, superficial personality style. We are therefore unable to conclude that there is a reasonable probability that, but for this alleged omission of counsel, the result of his trial would have been different, and petitioner's challenge to the effective- ness of counsel in this respect fails. See Sowell, supra, at 681. As to the remaining items concerning the other more tragic circumstances which petitioner now claims should have been admit- -11- ted, i.e., his mother's alcoholism and the abuse which he often witnessed, this information would appear to be completely incon- sistent with the favorable portrait of petitioner which counsel presented at trial. That is, trial counsel emphasized the favorable aspects of petitioner's life and chose to present him as someone who over controlled his negative feelings and had no pathological difference or condition requiring treatment or *** thought disorder. (Tr. 584) Considered in light of the nature of petitioner's defense at trial, we are compelled to conclude that the more negative information produced in connection with the amended petition for post-conviction relief is inconsistent with the essential trial strategy of working to establish reasonable doubt and in turn residual doubt that petitioner committed these offenses. We are therefore unable to conclude that counsel was ineffective in failing to present this information. Accord State v. Combs (1994), 100 Ohio App.3d 90, 103 wherein the court stated: A post conviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used at trial. State v. Jamison (Nov. 10, 1992), Hamilton App. No. C-910736, 1992 WL 333011. The affidavits of Keefe and Smith presented mitigation theories that were no more than alternative or cumulative to the theories used by Fisher. Therefore, they do not support substantive relief under either prong of the Strickland-Lockhart- Bradley test. Accord State v. Lott, supra; State v. Williams (1991), 74 Ohio App.3d 686, 695, (rejecting the argument that trial counsel was ineffective by failing to put forth mitigation evidence on that defendant's troubled childhood). Indeed, social worker Linda Pudvan's averment that even negative family history is relevant to -12- provide an explanation of Mr.Jells life and behavior during his offense and attorney Ken Murray's averment that unfavorable information further serves to explain the stresses and traumatic events that culminated the night of the offense seem odd in light of the complete denial presented at trial. Right to Allocution Petitioner next asserts that his trial counsel were ineffective because they did not preserve his right to speak before imposition of the death sentence. In State v. Mathis (April 30, 1997), Medina App. No. 96CA006448, unreported, the court considered the argument that the trial court violated Crim.R. 32(A) by not inviting the defendant or his counsel to speak before it imposed sentence. The court observed that the trial court did in fact ask defendant and his attorney if they had anything to say. The court further noted: Mathis does not identify how such a failure amounts to a constitutional violation. Even if Mathis could so characterize the trial court's actions, Mathis is precluded by the doctrine of res judicata from raising such a violation on post-conviction review. *** Because Mathis could have brought this claim at trial or upon direct review, he is barred from raising it in post- conviction proceedings. Likewise, in this instance, petitioner asserts that his right to allocution pursuant to Crim.R. 32(A) was violated but he does not present any authority to demonstrate that this violation has rendered his conviction void or voidable under the Ohio or United States Constitutions. Cf. State v. Perry (1967), 10 Ohio St.2d 175, paragraph four of the syllabus. Further, this claim could have been brought upon direct appeal to this court without reliance -13- upon any evidence dehors the record and it is therefore barred by the doctrine of res judicata. In any event, petitioner has failed to demonstrate that he would not have received the penalty which was imposed had an allocution occurred. See State v. Cooey (1994), Summit App. No. 15895, 15966, unreported. For the foregoing reasons, we conclude that this assignment of error is without merit. Petitioner's third, fourth, fifth, sixth, seventh, and eighth assignments of error are interrelated and state: THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA WHERE EVIDENCE DEHORS THE RECORD ESTABLISHES THAT THE PHOTOGRAPHIC ARRAY SHOWN TO THE PROSECUTION WIT- NESSES WAS UNDULY SUGGESTIVE AND INHERENTLY UNRELIABLE. THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA WHERE EVIDENCE DEHORS THE RECORD SHOWS THAT THE LINE-UP SHOWN TO THE PROSECUTION WITNESS IN APPELLANT JELLS' CASE WAS UNDULY SUGGESTIVE AND INHERENTLY UNRELI- ABLE. THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA WHERE EVIDENCE DEHORS THE RECORD ESTABLISHES APPELLANT'S CLAIM THAT THE WAIVER OF HIS RIGHT TO A JURY TRIAL WAS INVALID. THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA WHERE EVIDENCE DEHORS THE RECORD SUPPORTS APPELLANT'S CLAIM THAT A FIVE-YEAR-OLD CHILD WITNESS WHO IS UNABLE TO INDEPENDENTLY AND TRUTHFULLY RELATE FACTS, AND EXPOSED TO AN UNDULY SUGGESTIVE PHOTOGRAPHIC ARRAY, IS INCOMPETENT TO TESTIFY IN A CRIMINAL TRIAL. THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATAWHERE EVIDENCE DEHORS THE RECORD SUPPORTS APPEL- LANT JELLS' CLAIM THAT THE EXPERT OPINION TESTIMONY AT HIS TRIAL WAS NOT PROPERLY QUALIFIED AND NOT BASED ON A REASONABLE SCIENTIFIC CERTAINTY. THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA WHERE EVIDENCE DEHORS THE RECORD SUPPORTS APPELLANT JELLS' CLAIM THAT THERE WAS INSUFFICIENT -14- EVIDENCE TO CONVICT HIM OF KIDNAPPING AND THE CORRESPOND- ING AGGRAVATED MURDER. Within these assignments of error, petitioner maintains that the trial court erred in dismissing his petition for post convic- tion relief without holding a hearing because he advanced meri- torious claims which were supported by evidence outside the original trial record. Petitions for post conviction relief are governed by R.C. 2953.21 et seq. Claims raised pursuant to this statute must not raise issues which were raised or could have been raised on appeal. State v. Perry (1967), 10 Ohio St.2d 175, 180-181, paragraph nine of the syllabus. Where a petitioner seeks post conviction relief on the basis of issues which were raised or could have been raised on appeal, the petition is properly denied by application of the doctrine of res judicata. Id., paragraph nine of the syllabus; State v. Ishmail (1981), 67 Ohio St.2d 16, 18. To overcome the res judicatabar, the evidence must show that the petitioner 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. Generally, the petitioner must provide evidence outside the record to demonstrate that after conviction, he obtained evidence to support the claim. Id.; State v. Cooperrider (1983), 4 Ohio St.3d 226, 228. A criminal defendant seeking to challenge his conviction through a petition for post conviction relief is not automatically entitled to a hearing. State v. Jackson (1980), 64 Ohio St.2d 107. In Jackson, the court held that before a hearing is granted, the -15- petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the claimed error. Evidence outside the record by itself, however, will not guarantee a right to an evidentiary hearing. To overcome the res judicatabar, the evidence must show that the petitioner could not have appealed the constitutional claim based on the information in the original trial record. State v. Combs, supra, at 98; Cole, syllabus. The Combs court elaborated: One example of evidence outside the record that would show that the claim could not have been brought on direct appeal is evidence that alleges that, after conviction, petitioner discovered facts to indicate that the prose- cutor improperly withheld favorable evidence to the accused. Perry, 10 Ohio St.2d at 179, 39 O.O.2d at 191-192, 226 N.E.2d at 107-108, citing McMullen v. Maxwell (1965), 3 Ohio St.2d 160, 32 O.O.2d 150, 209 N.E.2d 449, with approval. By contrast, when a petition alleges that a defendant was convicted on illegally seized evidence, but does not allege facts to show that the issue could not have been brought on direct appeal, the court may deny a hearing. Perry, 10 Ohio St.2d at 182, 39 O.O.2d at 193, 226 N.E.2d at 109. Id. Finally, in State v. Scott (1989), 63 Ohio App.3d 340, this court held that errors dealing with the claim that defendant's conviction is supported by insufficient evidence is barred by application of the doctrine of res judicata. Accord State v. Lott (November 3, 1994), Cuyahoga App. Nos. 66388, 66389, 66390, unreported. Turning to the issue of whether the photographic array shown to Devon and witness Owen Banks was unduly suggestive and inherently unreliable, petitioner asserts that only his photo was -16- taken outside and he is depicted as big and black and it was therefore unduly conspicuous. These exact contentions were raised within petitioner's direct appeal. See State v. Jells, supra, 53 Ohio St.3d at 26-28. They are therefore barred by the doctrine of res judicata. Turning to the contention that the line-up shown to Edward Wright was unduly suggestive and inherently unreliable, petitioner asserts that only he wore a prison jump suit and the other men were not similar to petitioner in appearance. This same contention was raised in petitioner's direct appeal to this court. See State v. Jells, supra, unreported at 15-16. As to whether petitioner's waiver of his right to a jury trial was invalid because the examination undertaken by the trial court was insufficient to establish that it was intelligent, knowing, and voluntary, we note that this exact claim was raised in petitioner's direct appeal to the supreme court. See State v. Jells, supra, 53 Ohio St.3d at 24-26. Obviously, the trial court's colloquy was a matter of record and no evidence dehors the record is needed to establish this claim. The lower court properly determined that this matter was barred by the doctrine of res judicata. As to the claim that Devon was not competent to testify at the trial of this matter, we note that this claim was addressed within petitioner's direct appeal to this court, see State v. Jells, supra, unreported at 7-12, and again by the supreme court. See State v. Jells, supra, 53 Ohio St.3d at 26. Competency is a matter determined in relation to a voir dire examination which is part of -17- the trial record. See, e.g., State v. Frazier (1991), 61 Ohio St.3d 247, 251. The lower court therefore properly determined that this claim was barred by the doctrine of res judicata. Petitioner advances the related contention that Devon was incompetent to testify because he could not truthfully relate facts and was exposed to an unduly suggestive photographic array. As noted above, this court and the supreme court considered the question of Devon's ability to truthfully provide testimony within reviews of petitioner's conviction upon direct appeal, and both courts determined that Devon was competent. Further, within their review upon direct appeal, the supreme court stated: Although appellant claims there were some inconsistencies with Devon's testimony, we find upon review of the entire transcript that he gave a generally accurate eyewitness account. Devon's testimony was not necessarily inconsis- tent and certainly not indicative of an unreliable witness. See State v. Moody, supra, at 69, ("[a]lthough there was some evidence of discrepancies on the part of the complainant in her identification of the appellant as her assailant, these questionable areas in complainant's description were particularly for the jury to decide."). Therefore, we find no error with the photographic array shown to Devon. Id.,at 27. Moreover, Devon's competency, the nature of the array, and Devon's opportunity to view the assailant at the time of the offenses were matters within the original trial record and the lower court therefore properly determined that this claim was barred by the doctrine of res judicata. Petitioner also asserted within his amended petition that Det. Yonkers was not properly qualified to render expert testimony and that his testimony was not based on a reasonable scientific certainty. This court rejected this claim within our review of -18- petitioner's conviction upon direct appeal, see State v. Jells, unreported at 19-21. Upon further review, the supreme court likewise rejected this claim. See State v. Jells, 53 Ohio St.3d at 28-29. Moreover, the issue of whether Yonkers fulfilled the requirements of Evid.R. 701 was a matter squarely within the original trial record and the lower court therefore properly determined that the matter was barred by the doctrine of res judicata. Petitioner also asserted that there was insufficient evidence to convict him of kidnapping and the corresponding charge of aggravated murder. We rejected this claim within our review of petitioner's conviction upon direct appeal, see State v. Jells, unreported at 16-19. Again, this matter is considered in relation to the record, not matters dehors the record, and it is therefore barred by the docrine of res judicata. See State v. Zuern (December 4, 1991), Hamilton App. No. C-900481, unreported; State v. Cooey, supra. Therefore, we find that the petitioner's second assignment of error is not well taken and is overruled. For his ninth assignment of error, petitioner states: THE TRIAL COURT ERRED IN ITS CONCLUSION THAT APPELLANT VOLUNTARILY SIGNED A WAIVER AUTHORIZING POLICE TO SEARCH HIS VAN. Within this assignment of error, petitioner contends that the trial court erred in rejecting his post conviction challenge to the search of his van. -19- As noted above, when a petition alleges that a defendant was convicted on illegally seized evidence, but does not allege facts to show that the issue could not have been brought on direct appeal, the court may deny a hearing. State v. Combs, supra, 100 Ohio App.3d at 98; State v. Perry, supra, at 182. In this instance, the amended petition does not indicate why this issue could not have been raised upon direct appeal. See Exhibit UU. The trial court therefore properly determined that this claim as barred by the doctrine of res judicata. This assignment of error is overruled. Petitioner's tenth assignment of error states: THE TRIAL COURT ERRED IN ITS CONCLUSION THAT NO MATERIAL IMPEACHMENT AND EXCULPATORY EVIDENCE WAS WITHHELD FROM APPELLANT JELLS DURING HIS CAPITAL TRIAL. Within this assignment of error, petitioner maintains that the trial court erred in rejecting his claim that evidence for impeachment of the state's witnesses had to be provided prior to trial, pursuant to Brady v. Maryland (1963), 373 U.S. 83, and not following the testimony of the witness on direct examination. In Brady v. Maryland, supra, at 87, the Supreme Court of the United States held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment. Thereafter, in United States v. Bagley (1985), 473 U.S. 667, 676, the court noted that impeachment evidence also falls within the Brady rule. The Bagley court further noted that a finding of -20- materiality was also required, i.e., whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id., 473 U.S. at 682. In State v. Wickline (1990), 50 Ohio St.3d 114, 116, the Ohio Supreme Court observed that in United States v. Agurs (1976), 427 U.S. 97, 103, the Supreme Court of the United States stated that The rule of Brady *** arguably applies in three quite different situations[:] [e]ach involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense. Thus, the Wickline court determined that where allegedly exculpatory records were presented during the trial, there is no Bradyviolation requiring a new trial. Accord State v. Buhrman(September 12, 1997), Green App. No. 96-CA-145, unreported. The Wickline court additionally observed that Crim.R. 16(E) regulates discovery. Crim. R. 16(B) in turn provides that: Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prose- cuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. In this instance, while petitioner complains that the statements should have been provided prior to trial, we are satis- fied that compliance with the procedure outlined in Crim.R. 16(B(1)(g) is sufficient to meet the requirements of Brady v. Maryland, supra. Moreover, no evidence has been offered to indicate that there is a reasonable probability that an earlier -21- disclosure of this information would have resulted in a different outcome of the proceedings. This assignment of error is overruled. For his second assignment of error, petitioner states: THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS ON THE BASIS OF RES JUDICATA IN VIOLATION OF RULE TWELVE OF THE OHIO RULES OF CIVIL PROCEDURE. Within this assignment of error, petitioner contends that the trial court erred in granting the state's motion to dismiss his amended petition for post conviction relief. A petition for post-conviction relief is a civil proceeding in nature. State v. Nichols (1984), 11 Ohio St.3d 40, 42; State v. Milanovich (1975), 42 Ohio St.2d 46, 49. Post-conviction relief proceedings are, therefore, governed by the Ohio Rules of Civil Procedure. Milanovich, supra, at 51-52. Further, where a petition for post-conviction relief fails to allege facts which, if proved, would entitle the petitioner to relief, the trial court may so find and summarily dismiss the petition. Id.; Perry, supra, paragraph two of the syllabus. Additionally, where the petition alleges facts which, if proved, would entitle the petitioner to relief, but the file and record of the case negate the existence of such facts, the trial court may so find and summarily dismiss the petition. Id., paragraph three of the syllabus. In this instance, for all of the reasons set forth above, the amended petition failed to allege facts which would entitle -22- petitioner to relief. The trial court therefore properly dismissed the amended petition. This assignment of error is without merit. Affirmed. -23- 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. PORTER, P.J., AND NAHRA, J., CONCUR. ANN DYKE 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 .