COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72687 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION KERMIT B. HARRIS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-346368 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor FRANCINE B. GOLDBERG (#0053391) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN (#0002847) 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant Kermit B. Harris ( appellant ) appeals from his convictions for one count of aggravated robbery, one count -2- of receiving stolen property, one count of attempted murder and one count of felonious assault. Appellant assigns the following errors for our review: I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO THE INCLUSION OF PREJUDICIAL OTHER ACTS TESTIMONY IN VIOLATION OF EVIDENCE RULES 401, 403 AND 404(B). II. THE INCLUSION OF PREJUDICIAL IRRELEVANT TESTIMONY OF ALLEGED ACTS COMMITTED BY THE APPELLANT DENIED APPELLANT A FAIR TRIAL AS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. III. THE TRIAL COURT ERRED BY FAILING TO CONDUCT THE APPELLANT'S SUPPRESSION HEARING PRIOR TO THE COMMENCEMENT OF TRIAL. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On January 8, 1997, appellant was issued a four-count indictment. Count I charged appellant with aggravated robbery in violation of R.C. 2911.01 with firearm specifications. Count II charged appellant with receiving stolen property in violation of R.C. 2913.51, also with firearm specifications. Count III charged appellant with attempted murder in violation of R.C. 2923.02/2913.51 with firearm and peace officer specifications. Count IV charged appellant with felonious assault in violation of -3- R.C. 2903.11 with firearm and peace officer specifications. At his arraignment on January 24, 1997, appellant pleaded not guilty to the charges set forth in the indictment. On April 24, 1997, appellant filed a motion to suppress incriminating oral statements which he made to law enforcement officers. In his motion, appellant argued that these statements were made when he was being questioned while in custody, without being advised of his constitutional rights and while being denied the right to counsel. In addition, appellant claims that he made the incriminating statements under heavy sedation and in the hostile surroundings of the prison ward of a hospital. On April 30, 1997, appellant's case was called for trial. The court informed the parties that they would first select a jury and then hold the hearing on appellant's motion to suppress. Neither party objected to the court's decision to impanel the jury before conducting the suppression hearing. The jury was selected and excused for the day. Immediately thereafter, and prior to opening statements or the presentation of any evidence to the jury, the trial court held a hearing on appellant's motion to suppress. During this hearing, three prosecution witnesses testified and were cross-examined by appellant's attorney. Appellant also testified on his own behalf. The first witness to testify for the State at the suppression hearing was Patrolman Craig Sirna of the Bedford Heights Police Department. On December 30, 1996, Officer Sirna responded to a -4- radio call that an officer was down at 24900 Rockside Road. Officer Sirna also heard on the radio that the suspect had been seen heading by foot toward the interstate. Officer Sirna searched the area between the apartment complex and the interstate, and found appellant laying face down on the right side of the I-271 northbound entrance ramp. Officer Sirna waited for back-up, and then handcuffed appellant. Patrolman Sirna testified that although appellant had been handcuffed, the officers on the scene did not have a chance to thoroughly search him. The patrolman still had safety concerns, primarily whether or not appellant still had his gun on him. Therefore, Patrolman Sirna asked appellant where his gun was located. Patrolman Sirna testified that appellant stated that the gun was up on the hill. The State then called Deputy Richard Peters of the Cuyahoga County Sheriff's Office. Deputy Peters was assigned guard detail of appellant's room at MetroHealth Medical Center on January 17, 1997. Deputy Peters testified that appellant made unsolicited statements to him on that date. Specifically, appellant stated that he was high on crack when he shot the police officer. According to Deputy Peters appellant was alert at the time of this statement. The State's final witness at the suppression hearing was Deputy Joseph Mocsiran of the Cuyahoga County Sheriff's Department. Deputy Mocsiran had been assigned guard detail of appellant's room at MetroHealth Medical Center on January 18, 1997. Deputy Mocsiran -5- testified that appellant had also made unsolicited statements to him. According to Deputy Mocsiran, appellant stated that he was all messed up on crack when he shot the cop. Deputy Mocsiran stated that appellant appeared alert at the time of this statement. Appellant testified on his behalf at the suppression hearing. During his testimony, appellant did not claim that the alleged statements, if made, were the result of custodial interrogation. Instead, appellant denied making the incriminating statements. After both sides were given an opportunity to present witnesses, evidence and arguments, the trial court denied the motion to suppress. With the jury already impaneled, the trial was set to proceed. On May 1, 1997, opening arguments were made by the State and the defense. The first witness to testify for the State was Officer Robert Moore of the Bedford Heights Police Department. On December 30, 1996, while on patrol, Office Moore received a call that there was a fire at an apartment complex located at 24900 Rockside Road. Officer Moore was in the immediate area and responded to this call. As he approached the apartment building, a black male ( the suspect ) and a black female exited the entrance way of the building. Officer Moore testified that he heard the female say he robbed me, he has a gun. At that time, the suspect turned toward Officer Moore. Although Officer Moore did not see a gun, he saw a muzzle flash and heard a gunshot, both coming from the suspect's direction. Officer Moore ran for cover as the suspect fired two more rounds at him. The second shot entered Officer Moore's left -6- arm and shattered his humerus. The third shot hit Officer Moore in the abdominal area. At that point, Officer Moore fired at least four rounds at the suspect with his .40 caliber semiautomatic pistol. As the suspect ran toward the parking area north of the apartment building, Officer Moore continued to fire. A rescue squad responding to the fire call administered first aid to Officer Moore. Officer Moore was then transferred to Meridian South Pointe Hospital. Officer Moore was hospitalized for four and one-half days and underwent surgery to repair his shattered humerus. The State then called Officer Craig Sirna of the Bedford Heights Police Department. On December 30, 1996, Officer Sirna responded to a radio call that an officer was down at 24900 Rockside Road. Officer Sirna also heard on the radio that the suspect had been seen heading by foot toward the interstate. Officer Sirna searched the area between the apartment complex and the interstate, and found appellant laying face down on the right side of the I-271 northbound entrance ramp. Although he had handcuffed appellant, Patrolman Sirna was still concerned about the location of the suspect's weapon. Therefore, Patrolman Sirna asked appellant where the gun was. Patrolman Sirna testified that appellant responded that the gun was up on the hill. Officer Sirna observed a blood trail from appellant to the top of an embankment between I-271 and its entrance ramp ( the embankment ). Thereafter, another police officer located a weapon at the top of -7- that embankment. Officer Sirna escorted appellant to Bedford Hospital. At Bedford Hospital, a hospital employee handed Officer Sirna an envelope containing jewelry and money found in appellant's pockets. Officer Sirna then accompanied appellant as he was life-flighted to MetroHealth Medical Center. Officer Sirna guarded appellant from the time appellant was handcuffed until 7:00 a.m. the next morning, when he was relieved by another officer. Officer Sirna was able to make a positive identification of appellant from the witness stand. The next day, Officer Sirna turned the envelope with jewelry and money found in appellant's pockets over to the detective bureau. The next witness to testify was Michael Robinson, an emergency medical technician at University Hospital of Bedford. Mr. Robinson testified that Kermit Harris arrived at the emergency department after 11:00 p.m. on December 30, 1996. Harris was accompanied by a police officer. According to Mr. Robinson, certain jewelry items were recovered from Harris' pockets. These items, which were soiled with blood, were listed on the patient's valuables form, placed in an envelope, and turned over to the police officer. Kenneth Balogh, a fire fighter with the Bedford Heights Fire Department, testified that he responded to the fire call at the apartment complex located at 24900 Rockside Road on December 30, 1996. When he arrived on the scene, Mr. Balogh observed a black male running from the direction of the apartment complex and -8- between automobiles in the parking area north of the building. This male ran in front of the fire engine Mr. Balogh was driving, causing Mr. Balogh to sound the air horn and slam on the brakes. Mr. Balogh testified that he observed the suspect fall down, regain his footing, and start running towards the interstate. Mr. Balogh then saw the suspect scale a fence between the apartments and I- 271. Mr. Balogh was notified that Officer Moore had been shot. Mr. Balogh ran over to where Officer Moore was located and assisted in providing emergency medical treatment. Mr. Balogh noted that Officer Moore was bleeding profusely. During his testimony, Mr. Balogh used the terms grave, serious, critical and life-threatening to describe Officer Moore's condition at the scene. Mr. Balogh testified that Officer Moore was stabilized and transferred to a hospital. Cynthia Mayle, a latent fingerprint examiner with the Bureau of Criminal Identification and Investigation of the State Attorney General's Office ( BCI ), also testified. Ms. Mayle conducted a comparison of fingerprints found on the clip of the .45 caliber semi-automatic pistol retrieved from the scene with a fingerprint card obtained from appellant. Ms. Mayle concluded that the fingerprints found on the clip matched appellant's fingerprint card. The next witness for the State was Lt. Gregory Duber, the canine handler for the Bedford Police Department. On December 30, 1996, Lt. Duber received a call to assist the Bedford Heights -9- Police Department at the apartment complex on Rockside Road. Initially, Lt. Duber and his dog were to assist in tracking the suspect. Lt. Duber noted a trail of blood on the pavement of the parking area and on some nearby grass. When the suspect was apprehended by other officers, Lt. Duber and his dog began an article search. Lt. Duber first located a coat and a sweat shirt. Lt. Duber then located a weapon at the top of the embankment. Det. Timothy Cercek of the Bedford Heights Police Department was the next witness. Det. Cercek testified that he was in charge of gathering evidence at the crime scene. Det. Cercek personally collected evidence from the crime scene, including: 1) a loaded .45 semiautomatic pistol recovered at the top of the embankment between I-271 and its entrance ramp; 2) spent .40 caliber shell casings; 3) spent .45 shell casings; 4) blood samples; 5) a blue denim jacket; and 6) a pair of black tennis shoes. This evidence was collected and then locked in a secure room at the detective bureau. The evidence was only removed from the secure room for testing. Det. Cercek personally transported the evidence to the BCI lab and the coroner's office for testing. When the testing was completed, Det. Cercek personally retrieved the evidence and returned it to the secure room. The State then presented testimony from Joyce Boyd. On December 30, 1996, Ms. Boyd was visiting family members at the South Pointe Apartment Complex at 24900 Rockside Road. She was in the entrance way of the apartment building when she was confronted -10- by the appellant. According to Ms. Boyd, appellant showed her his gun and demanded her jewelry. Then, as appellant was forcing her out the door, Ms. Boyd saw a police officer approaching the apartment's entrance. Ms. Boyd saw appellant reach for his gun. Ms. Boyd yelled to the officer that appellant had a gun. She then saw appellant fire at the officer. As appellant and the officer exchanged fire, Ms. Boyd went for cover in the entrance of the apartment building. Ms. Boyd then observed appellant running away and saw that the officer had been shot. Ms. Boyd testified that she knew appellant from previous contact with him. Specifically, Ms. Boyd claimed that appellant had stalked, robbed and raped her in the past. Ms. Boyd testified that she had reported these past incidents to the police. Elizabeth Lansky, a trace evidence examiner employed by the Cuyahoga County Coroner's Office, was also called to testify. Ms. Lansky received and examined pieces of clothing and blood samples from the crime scene. Ms. Lansky concluded that various blood samples, including blood samples obtained from a bullet fragment, a shoe print and the gun used to shoot Officer Moore, were consistent with appellant's blood. The State then presented the testimony of Michael Roberts, a firearms examiner at BCI. Mr. Roberts tested the .45 caliber semi- automatic pistol found on the embankment and Officer Moore's .40 caliber semi-automatic pistol. Mr. Roberts found that both guns were operational. Mr. Roberts also performed test shots and -11- microscopic comparisons on thirteen cartridge cases recovered from the crime scene. Mr. Roberts concluded that eight cases came from the .45 caliber pistol and that the other five came from Officer Moore's gun. Finally, Deputies Richard Peters and Joseph Mocsiran of the Cuyahoga County Sheriff's Office testified about the incriminating statements made to them by appellant during his hospitalization. At the close of the State's case, the defense also rested without calling any witnesses. On May 6, the jury returned its verdict. The jury found appellant guilty of one count of aggravated robbery with firearm specifications, one count of receiving stolen property, one count of attempted murder with firearm and peace officer specifications, and one count of felonious assault with firearm and peace officer specifications. Appellant was sentenced for ten years for Count I, one year for Count II, ten years for Counts III and IV (which were merged for sentencing), and three years for the gun specifications for Counts I and III, with all Counts to run consecutive to each other. Appellant filed a timely notice of appeal and subsequently raised the within assignments of error. II. In his first assignment of error, appellant argues that he was denied effective assistance of counsel because his attorney failed to object to Joyce Boyd's testimony that appellant had stalked, -12- raped and robbed her in the past. This argument is unpersuasive. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate: 1) that his counsel's performance was deficient; and 2) that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for the counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio St.3d 162. The burden is on the defendant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Judicial scrutiny of counsel's performance must be highly deferential. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, supra, at 689. Hindsight will not be used to distort the assessment of what was reasonable in light of counsel's perspective at the time. State v. Cook (1992), 65 Ohio St.3d 516. This includes a counsel's decision not to pursue every possible trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319. After all, the Constitution does not guarantee an error-free -13- trial but only a fair trial and a competent attorney. Engle v. Isaac (1982), 456 U.S. 107, 134. The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. State v. Frazier (1991), 61 Ohio St.3d 247, 254. We note that failure to object to error, alone, is not enough to sustain a claim of ineffective assistance. State v. Campbell (1994), 69 Ohio St.3d 38, 52-53 ("Because '[o]bjections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder,' Jacobs, Ohio Evidence (1989), at iii-iv, competent counsel may reasonably hesitate to object in the jury's presence.") In the instant case, a review of the record from the trial court in its entirety fails to disclose that the performance of appellant's counsel was seriously flawed and deficient. Contrary to appellant's contention, the fact that defense counsel failed to object to Ms. Boyd's brief testimony on his past acts does not rise to the level of ineffective assistance of counsel. Assuming arguendo that the failure to object to Ms. Boyd's brief references to appellant's past actions constituted ineffective assistance of counsel, such error would still not merit a reversal of appellant's conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Strickland, supra, at 691, citing United States v. -14- Morrison (1981), 449 U.S. 361, 364-365. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In the instant case, there is nothing in the record to demonstrate that the outcome of the underlying trial would have, in any way, been different had the disputed objection been made. In fact, the jury was presented with overwhelming evidence of appellant's guilt. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant challenges the admission of Joyce Boyd's testimony concerning other crimes, wrongs or acts of the appellant. Appellant contends that this testimony was irrelevant, prejudicial, and impermissible pursuant to Evid.R. 404(B). Appellant's contentions are unpersuasive. Evid.R. 404(B) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of crimes or other acts is admissible only when it is -15- relevant to one of the matters listed in Evid.R. 404(B). The test to be used by the reviewing court in a criminal case in which a defendant-appellant alleges that prejudicial error constitutional in nature occurred by allowing the jury to hear certain testimony is found in State v. Davis (1975), 44 Ohio App.2d 335. First, in a criminal case where the appellant alleges that it was prejudicial error to allow the jury to hear certain testimony, we must determine whether it was error to allow the jury to hear the complained-of testimony. Id. at paragraph three of the syllabus. A review of the record reflects that the testimony was offered for one of the allowed permissible purposes under Evid.R. 404(B), namely identity. The admission of eyewitness testimony identifying a defendant, although it includes testimony of other crimes, is not error. State v. Lott (1990), 51 Ohio St.3d 160, 169. In the instant case, the brief statements of Ms. Boyd concerning appellant's other similar acts, were not error nor did they prejudice appellant. The testimony at issue, which consisted of a mere two pages of the transcript, demonstrated that the witness knew appellant before the incident and was able to make a reliable identification. (Tr. 382, 412.) Therefore, we find that it was not error for the court to permit Ms. Boyd's brief testimony concerning appellant's "other bad acts. Even if the trial court had erred in allowing testimony of appellant's other bad acts , we would still have to determine that -16- such error was prejudicial in order to merit reversal of appellant's convictions. Davis, supra at 343. To make that determination, "[t]he court must read the entire record, disregarding the objectionable material, and then determine whether or not there was overwhelming evidence of the appellant's guilt." Id. at 343-344. See also State v. Stevenson (Oct. 8, 1992), Cuyahoga App. No. 61074, unreported. Appellant has alleged that this error is unconstitutional in nature. Where evidence supplied in violation of a constitutional right is merely cumulative and the other evidence against the accused is overwhelming, the reviewing court may conclude that the denial of the accused's constitutional rights was harmless error. The Supreme Court of Ohio stated that "[e]rror in the admission of other act testimony is harmless when there is no reasonable possibility that the testimony contributed to the accused's conviction. State v. Lytle (1976), 48 Ohio St.2d 391, paragraph three of the syllabus. We have carefully reviewed the record before us as a whole, disregarding any references to Ms. Boyd's claims that appellant had stalked, raped and robbed her in the past. As discussed in the first assignment of error, we conclude that the record demonstrates overwhelming evidence of the appellant's guilt aside from the disputed evidence. Upon consideration of the entire record before us, we do not see that the admission of allegedly improper testimony concerning -17- appellant's past crimes, wrongs or acts made by Ms. Boyd amounts to prejudicial error. The balance of the evidence at trial constituted overwhelming evidence of the appellant's guilt of aggravated robbery, receiving stolen property, attempted murder, and felonious assault. Accordingly, we find that the error complained of, if any, was harmless beyond a reasonable doubt and did not deprive the appellant of his constitutional right to a fair trial. IV. In his third assignment of error, appellant argues that the trial court erred in failing to rule on his suppression hearing prior to jury selection. This argument is also unpersuasive. Crim.R. 12(E) provides that: A motion made before trial other than a motion for change of venue, shall be timely determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record. Pursuant to Crim.R. 12(E), a trial court is required to rule upon a motion to suppress before the trial commences. State v. Canady (Apr. 16, 1992), Cuyahoga App. No. 60355, unreported. In the instant case, the jury was impaneled and excused for the day. Immediately thereafter, the suppression hearing was held. (Tr. 21-105.) At the suppression hearing, appellant was given full opportunity to present his case and cross-examine the prosecution's witnesses. Based on the evidence presented, the trial court overruled appellant's motion to suppress. We hold that there is no error in conducting a hearing on the -18- suppression of evidence after the jury is selected as long as the hearing is conducted prior to opening statements and the presentation of evidence. Accordingly, appellant's third 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court -19- 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. TERRENCE 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 .