COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72641 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION KELVIN THOMPSON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-303894 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: LISA REITZ WILLIAMSON (#0041468) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: KELVIN THOMPSON, PRO SE Trumbull Correctional Inst. Post Office Box 901 Leavittsburg, Ohio 44430-0901 SPELLACY, J. Defendant-appellant Kelvin Thompson ( appellant ) appeals from -2- the denial of his petition for post-conviction relief. Appellant assigns the following errors for review: I. PROSECUTORIAL MISCONDUCT VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL, AND DENIED PETITIONER DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION,WHEN PROSECUTOR JOHN KOSKO, PLACED PETITIONER'S CO-DEFENDANT LANCE CARTER, IN PETITIONER'S TRIAL AS AN INFORMANT IN STATE V. THOMPSON (1994) CASE NO. 303894, CUYAHOGA COUNTY. II. THE STATE VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS WHICH DENIED PETITIONER DUE PROCESS UNDER THE FOURTEENTH AMENDMENT THE UNITED STATES CONSTITUTION, BY TELLING POTENTIAL EXCULPATORY WITNESS RACHEL WHITAKER, THAT SHE DID NOT HAVE TO COME TO PETITIONER'S TRIAL. III. THE STATE'S FAILURE TO DISCLOSE THAT ITS KEY WITNESS JACKIE SANDERS, WAS A PROBATIONER, AND IN VIOLATION OF HER PROBATION, WHEN SHE TESTIFIED AGAINST PETITIONER DURING PETITIONER'S TRIAL IN STATE V. THOMPSON, (1994) CASE NO. 303894, CUYAHOGA COUNTY, DENIED PETITIONER DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. -3- IV. PETITIONER'S TRIAL COUNSEL'S FAILURE TO INTERVIEW, CALL, OR SUBPENA (SIC) POTENTIAL EXCULPATORY WITNESSES RACHEL WHITAKER, TOMMY ROZIE, AND ALONZO KYLES, DENIED PETITIONER OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND HIS CHANCE TO PRESENT RELEVANT MATERIAL EXCULPATORY EVIDENCE TO THE TRIERS OF FACT. V. PETITIONER'S TRIAL COUNSEL'S ASSISTANCE IN STATE V. THOMPSON, (1994) CASE NO. 303894, CUYAHOGA COUNTY, FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS, WHEN HE FAILED TO SUBPENA (SIC) THE PHONE RECORDS OF MR. & MRS. GEORGE & PATRICIA HARRISON, 2868 E. 114TH STREET, CLEVELAND, OHIO 44105. VI. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN STATE V. THOMPSON, (1994) CASE NO. 303894, WHEN HIS COUNSEL FAILED TO OBTAIN DOCUMENTS WHICH WOULD HAVE AIDED PETITIONER'S DEFENSE. VII. PETITIONER'S TRIAL COUNSEL WILLIAM T. McGINTY, DENIED PETITIONER EFFECTIVE ASSISTANCE OF COUNSEL THAT'S GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, WHEN HE WALKED OUT OF THE COURT PROCEEDINGS IN THE PRESENCE OF THE JURY, DURING PETITIONER'S TRIAL IN STATE V. THOMPSON, (1994) Case No. 303894, CUYAHOGA COUNTY. VIII. CUMULATIVE EFFECT OF ERRORS COMMITTED VIOLATED PETITIONER'S SIXTH AMENDMENT RIGHT, AND DENIED PETITIONER DUE PROCESS UNDER THE FOURTEENTH AMENDMENT. -4- IX. THE TRIAL COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S PETITION FOR POST- CONVICTION RELIEF, THEREBY DENYING APPELLANT DUE PROCESS OF LAW, WHICH VIOLATED APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS TO (SIC)THE UNITED STATES CONSTITUTION. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. Appellant was convicted of aggravated murder for the 1993 death of Junius Chaney. This court affirmed appellant's conviction in State v. Thompson (May 8, 1995), Cuyahoga App. No. 67048, unreported. The Supreme Court of Ohio dismissed appellant's discretionary appeal. On August 7, 1996, appellant filed a petition for post-conviction relief. The trial court denied appellant's petition without a hearing. This court dismissed appellant's appeal for the denial of his petition as no findings of fact or conclusions of law were filed by the trial court. The trial court then filed findings of fact and conclusions of law in which it found that appellant's petition was not supported by sufficient documentary evidence to support his claims and that res judicata barred appellant's claims. II. In his first assignment of error, appellant contends that prosecutorial misconduct deprived him of a fair trial and denied him due process. Appellant maintains that, during oral argument before this court in appellant's direct appeal, the prosecutor -5- admitted that co-defendant Lance Carter was a snitch from the beginning. Appellant asserts that the prosecutor knew Carter was an informant yet still allowed him to testify against appellant and the second co-defendant after Carter entered a plea of guilty during trial. R.C. 2953.21(A) provides: Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating the grounds for relief upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. A petition for post-conviction relief will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. Relief is not available when the issue has been litigated by appeal or upon a motion for a new trial. State v. Walden (1984), 19 Ohio App.3d 141, 146. The claim must depend on factual allegations which cannot be determined by an examination of the files and records of the case. State v. Milanovich (1975), 42 Ohio St.2d 46, paragraph one of the syllabus. Constitutional issues which could have been raised on appeal but were not will be barred by res judicata. State v. Perry (1967), 10 Ohio St.2d 175. In appellant's direct appeal, the issue of whether Carter's -6- guilty plea in the midst of trial denied appellant a fair trial was addressed. This court found that the evidence to support appellant's conviction was sufficient even without Carter's testimony. This court went on to state: Appellant was not unfairly surprised nor prejudiced by Carter's defection from the defense table mid-way through the trial. Appellant's defense counsel was able to cross- examine Carter and establish the terms of his plea bargain with the State for the benefit of the jury. It was then the jury's job to assess Carter's credibility based upon his status as an ex-defendant in the case. State v. Thompson (May 8, 1995), Cuyahoga App. No. 67048, unreported, at 18. As this court already has determined appellant was not prejudiced by Carter's testimony in its entirety, res judicata bars appellant from raising error with regard to that testimony. Appellant's first assignment of error is overruled. III. Appellant's second assignment of error alleges prosecutorial misconduct. Appellant charges that the prosecutor told Rachel Whitaker that she did not have to attend appellant's trial because Whitaker's testimony would have aided appellant's defense. Although appellant's petition for post-conviction relief states that Whitaker's affidavit was appended to the petition as Exhibit C, the document is not attached to the petition in the file before this court. Therefore, appellant has not supported his allegation -7- of prosecutorial misconduct with adequate evidentiary documents. The trial court did not err by dismissing this cause of action. State v. Perry (1967), 10 Ohio St.2d 175. Appellant's second assignment of error is overruled. IV. Appellant's third assignment of error contends that the state did not disclose that one of its witnesses had violated her probation. Appellant argues that the prosecution deliberately withheld this information which prevented proper cross-examination of the state's witness, Jackie Sanders. The United States Supreme Court held in Brady v. Maryland (1963), 373 U.S. 83, that the failure of the prosecution to disclose upon request evidence favorable to the defendant constitutes a violation of the Fourteenth Amendment's due-process guarantee of a fair trial when the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87. Undisclosed evidence is material for purposes of the Brady rule 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. Appellant has presented no evidence that the prosecution knew Sanders was a probation violator at the time of trial. Appellant -8- stated in his petition for post-conviction relief that he saw a notice regarding Sanders's violation of her probation in the Daily Legal News ten months after his trial ended. As there is no direct evidence the prosecution knew Sanders's was a probation violator, appellant has not supported his allegation regarding a Brady violation with sufficient evidence. Further, this court addressed the issue of the trial court's limiting of the questioning of Sanders on cross-examination regarding her conviction. This court found no abuse of discretion in the trial court's ruling. Appellant's new contention would not have changed the reasoning of this court in its opinion on appellant's direct appeal. Res judicata is applicable to this assignment of error. Also, appellant has not shown that the result of the trial would have been different had the defense cross- examined Sanders on this issue. Appellant's third assignment of error lacks merit. V. Appellant's fourth, fifth, sixth, and seventh assignments of error will be addressed together as all involve various claims of ineffective assistance of trial counsel. Appellant asserts his trial counsel failed to call exculpatory witnesses to testify, subpoena phone records, obtain documents, and walked out in the midst of trial in the presence of the jury. The doctrine of res judicata bars a claim of ineffective assistance of counsel when a defendant is represented by new -9- counsel on direct appeal and the issue could have been determined without resort to evidence de hors the record. State v. Cole (1982), 2 Ohio St.3d 112, syllabus. Competent, relevant, and material evidence de hors the record may defeat the application of res judicata. This evidence must demonstrate that the petitioner could not have appealed the constitutional claim by use of information found in the original record. State v. Lawson (1995), 103 Ohio App.3d 307. The petitioner must submit evidentiary documents which contain sufficient operative facts to demonstrate that counsel was not competent and that the defense was prejudiced by the ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107. If the petitioner fails to meet this burden, the trial court may dismiss the petition for post-conviction relief without a hearing. Id. Appellant supported his petition for post-conviction relief with his own affidavits in which appellant averred that he told his attorney that he was paged by George Harrison, whom appellant claimed he was with at the time of the murder; that appellant went to Harrison's home and made phone calls; that Harrison gave appellant documents evidencing payments for a vehicle appellant sold Harrison; gave his attorney the names of witnesses who would confirm it was appellant's habit to park his automobile on the street where it was found after the murder; and that appellant's attorney walked out of the trial in front of the jury. Appellant also appended some copies of records showing he sold an automobile -10- to Harrison. Appellant claims he attached an affidavit from Rachel Whitaker in which she supposedly averred that appellant did not retrieve a firearm from her residence on the night of the murder and that he was not at her home that evening. However, this affidavit, Exhibit C, is not attached to the petition for post-conviction relief found in the record. Aside from his own affidavits, the only evidence to support appellant's ineffective assistance claim are affidavits from Tommy Rozie in which Rozie states a witness in the trial lied about appellant's involvement in the murder because he did not like appellant and another man verifying that appellant always parked his vehicles on a certain street. The claim of ineffective assistance of counsel requires proof that counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. The establishment of prejudice requires proof that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Id., paragraph three of the syllabus. The burden is on the defendant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Trial counsel is strongly presumed to have rendered adequate assistance. Id. An appellate court will not second-guess what could be considered to -11- be a matter of trial strategy. Id. The failure to call defense witnesses usually is considered to be a matter of trial strategy. State v. Oliver (1995), 101 Ohio App.3d 587. The strongest support for appellant's claim of ineffective assistance of counsel are appellant's own, self-serving affidavits. Evidence de hors the record in the form of the petitioner's own self-serving affidavit alleging a constitutional deprivation will not compel a hearing. State v. Kapper (1983), 5 Ohio St.3d 36, 37-38. The affidavit of Rachel Whitaker is not before this court. The other two affidavits are not sufficient to overcome the presumption that appellant was afforded effective assistance. Appellant has failed to sufficiently support his claim of ineffective assistance of counsel by evidentiary materials which show that he did not have reasonable representation or that he was prejudiced by his counsel's ineffectiveness. Appellant's fourth, fifth, sixth, and seventh assignments of error lack merit. VI. Appellant's eighth assignment of error asserts that cumulative errors deprived him of due process pursuant to the Fourteenth Amendment to the United States Constitution. As this court has not found any errors, appellant's eighth assignment of error is overruled. VII. In his ninth assignment of error, appellant contends the trial -12- court erred by dismissing his petition for post-conviction relief without first holding a hearing. Appellant argues that he submitted evidentiary documents which contain sufficient operative facts to support his claims of prosecutorial misconduct and ineffective assistance of counsel. R.C. 2953.21(C) states in pertinent part: 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 the court, and the court reporter's transcript. R.C. 2953.21(C) applies before a hearing is granted. A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. Broad assertions without a further demonstration of prejudice and general conclusory allegations that a petitioner was denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing. Id. at 111. The test to be applied is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records of the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251. A petitioner -13- satisfies his initial burden by submitting evidence outside the record sufficient to avoid dismissal. State v. Williams (1991), 74 Ohio App.3d 686, 692. This assignment of error really is just a rehash of the first eight assignments of error. The disposition of those assignments of errors also is dispositive of this alleged error. Appellant's claims either are barred by res judicata or not supported by sufficient evidence de hors the record. Appellant's ninth assignment of error is overruled. Judgment affirmed. 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 -14- pursuant to Rule 27 of the Rules of Appellate Procedure. TERRANCE O'DONNELL, P.J. and DIANE KARPINSKI, J. CONCUR LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .