COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73018 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DOUGLAS EVANS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 3, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-349662 JUDGMENT: AFFIRMED AS MODIFIED, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN (#0037852) LANCE MASON (#0067346) Assistant Prosecuting Attorneys 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 Douglas Evans ( appellant ) appeals from -2- his conviction on two counts of aggravated murder and one count of attempted murder. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT'S MOTION TO SUPPRESS BASED UPON THE ILLEGAL ENTRY INTO THE APPELLANT'S RESIDENCE WITHOUT A SEARCH WARRANT. II. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE APPELLANT'S INCULPATORY STATEMENT AS IT WAS INVOLUNTARILY PROVIDED. III. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTION TO REFER TO THE CO- DEFENDANT'S STATEMENT DURING TRIAL EVEN THOUGH THEY KNEW THE CO-DEFENDANT WOULD NOT BE TESTIFYING DURING THE TRIAL. IV. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MULTIPLE FIREARM SPECIFICATIONS WHEN THE FELONIES COMMITTED CONSTITUTED THE SAME ACT OR TRANSACTIONS. V. THE TRIAL COURT ERRED BY FAILING TO MERGE THE TWO CONVICTIONS OF AGGRAVATED MURDER. Finding the first, second, third and fifth assignments of error to lack merit, appellant's conviction is affirmed. Finding the fourth assignment of error to have merit, this cause is remanded for modification of appellant's sentence consistent with this opinion. I. On April 9, 1997, appellant was issued a three-count indictment. Counts one and two of the indictment charged appellant with aggravated murder in violation of R.C. 2903.01 with firearm, mass murder and felony murder specifications. Count three of the -3- indictment charged appellant with attempted murder in violation of R.C. 2923.02/2903.02 with a firearm specification. At his arraignment, appellant pleaded not guilty to the charges set forth in the indictment. On June 18, 1997, appellant filed a motion to suppress the statements he made to the police. On June 24, 1997, the trial court conducted a hearing on appellant's motion to suppress. The prosecution called Sergeant Marvin Cross of the Cleveland Police Department to testify about the events surrounding appellant's arrest. Sergeant Cross was one of the police officers who went to arrest appellant at his apartment building on April 3, 1997. As he entered the apartment building, Sergeant Cross observed appellant in a common hallway. The police immediately arrested appellant and he was placed in a zone car outside the apartment building. According to Sergeant Cross, he then personally informed appellant of his rights, including the right to remain silent and the right to an attorney. When Sergeant Cross asked appellant if he understood his rights, appellant stated that he did. The prosecution then called Detective Edward Gray, the officer who obtained the written statement from appellant. Detective Gray testified that, prior to interviewing appellant, he once again informed appellant of his rights. In addition, Detective Gray read, and had appellant follow, the following soliloquy contained on the form on which appellant's written statement was typed: * * * [Y]ou may be charged with Aggravated Murder. Before making any written statement that may be used against you at the time of your trial, we wish to repeat the instructions -4- issued prior to oral interrogation, that you have the right to counsel, appointed or retained, before interrogation, that you have the right to remain silent, and that anything you say may be used against you. You have the right to an attorney present while making this statement. Q. Do you understand your rights as stated above? Q. Do you care to make a statement? Appellant answered, in writing, yes to each question, and signed the form immediately following the two questions. At the end of the statement, Detective Gray asked appellant several questions. The final question read: Q. Has any member of the Cleveland Police Department or anyone else made threats or promises for you to give this statement. In response, appellant wrote no and signed the space immediately following his answer. According to Detective Gray, no threats or promises were made to appellant, by him or anyone else, prior to appellant providing his written statement. Appellant did not offer any evidence to contradict the testimony of the two police officers. Based upon the evidence presented at the suppression hearing, the trial court denied appellant's motion to suppress. On June 26, 1997, appellant's jury trial commenced. The prosecution first presented medical expert testimony from the county's deputy coroner, Martha Steinberg, M.D. Dr. Steinberg performed the autopsy on the murder victim, Mr. Tayeh. Dr. Steinberg testified that Mr. Tayeh was shot three times; according to Dr. Steinberg, Mr. Tayeh died from the loss of blood caused by -5- these multiple gunshot wounds. The prosecution also called various lay witnesses, including appellant's other victim, Walid Quran. Mr. Quran worked at Nadia's Grocery Mart with Mr. Tayeh. Mr. Quran testified that, on the day of the shooting, appellant and his co-defendant entered the store right before closing. Mr. Quran recognized appellant and his co- defendant as frequent customers of the store. Mr. Quran went to the back of the store to turn off the lights and prepared to close the store for the night. According to Mr. Quran, as he was walking down the aisle, he heard two shots. When Mr. Quran turned around, he saw appellant shoot Mr. Tayeh a third time and Mr. Tayeh fall to the floor. Appellant then approached Mr. Quran and shot him twice. The prosecution also called several law enforcement officers to testify, including Detective Christopher Grooms. Detective Grooms was among the law enforcement officers who arrested appellant at his apartment building on April 3, 1997. Detective Grooms testified that, upon entering a common hallway, he observed appellant placing a padlock on the basement door. Appellant was immediately arrested and advised of his constitutional rights, including his right to remain silent and his right to an attorney. According to Detective Grooms, appellant consented to a search of the basement and provided police with a key to the padlock. Detective Grooms testified that a gun was found in the basement in the location where appellant informed police it would -6- be. According to Daniel Rowley, of the Cleveland Police Department's forensic laboratory, the gun found in appellant's basement matched the weapon used to shoot Mr. Tayeh and Mr. Quran. The prosecution's final witness was Richard Martin, a homicide detective with the Cleveland Police Department. Detective Martin, who was assigned to investigate the murder of Mr. Tayeh, interviewed Mr. Quran in the hospital. According to Detective Martin, Mr. Quran identified Valiant Townsend from a photograph line-up he had prepared. Detective Martin testified that the police arrested Townsend and obtained a written statement from him; in his written statement, Townsend named appellant as the gunman. An arrest warrant for appellant was obtained on the evening of April 2, 1997. On April 3, 1997, police arrested appellant and recovered the murder weapon. According to Detective Martin, who was present during appellant's interrogation, appellant was advised of his rights and then gave police a written statement. In his statement, appellant admitted to shooting both Mr. Tayeh and Mr. Quran. After the prosecution rested, appellant called two witnesses, including his mother. Appellant also testified in his own defense. During his testimony, appellant denied any role in the murder of Mr. Tayeh and the attempted murder of Mr. Quran. The defense then called Townsend to testify; however, Townsend exercised his right not to testify under the Fifth Amendment. Subsequently, the defense attempted to present the written statement provided to the police by Townsend; however, the trial court excluded the -7- statement. The defense rested and the case went to the jury for deliberation. On July 2, 1997, the jury returned its verdict; the jury found appellant guilty of two counts of aggravated murder and one count of attempted murder. For each count of aggravated murder, the trial court sentenced appellant to life in prison without parole considerations until serving thirty full years of incarceration; appellant was also sentenced to two three-years prison terms for the gun specifications in counts one and two, to be served consecutive to the life sentences for aggravated murder. The trial court merged counts one and two and ordered that they be served concurrent. Appellant was also sentenced to ten years of incarceration for his conviction for attempted murder, with a consecutive three-year prison term for the gun specification. The trial court ordered that the sentence for attempted murder be served consecutive to the life sentence imposed for aggravated murder. II. In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress the gun police found in his apartment building and the statement he provided to police. Appellant claims that this evidence was the fruit of the poisonous tree of his warrantless arrest. Appellant's arguments are based upon the misrepresentation that police entered his home and arrested him without an arrest warrant. We agree with appellant's basic recitation of law. Generally, -8- a warrant is required, absent exigent circumstances, to arrest a person in his home. Payton v. New York (1980), 445 U.S. 572; Steagald v. United States (1981), 451 U.S. 204.1 However, upon review of the record, we find that this assignment of error has no factual basis. Contrary to appellant's assertions, the testimony presented at the suppression hearing indicated that police had obtained an arrest warrant for appellant on April 2, 1997. Appellant was then arrested in a common area of his apartment building on April 3, 1997. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant argues that the trial court erred in denying his motion to suppress the written statement he provided to police after his arrest. Specifically, appellant claims that his statement should have been suppressed for two reasons: (1) appellant was denied his right to counsel; and (2) his written statement was not voluntarily provided. Appellant contends that he was denied the right to counsel under both the Sixth and Fourteenth Amendments. The Sixth Amendment provides defendants with the right to counsel once formal 1 This court has held that the privacy concerns upon which the Supreme Court relied in articulating this principle are not present where the arrest was attempted in a common area of an apartment building. State v. Hoover (1984), Cuyahoga App. Nos. 46703, 46704, unreported. In this case, appellant was arrested in a common area of his apartment building. Therefore, even if appellant's factual representations were correct, this assignment of error would fail. -9- proceedings have been initiated. Brewer v. Williams (1977), 430 U.S. 387, 398. The right to counsel under the Sixth Amendment attaches to critical stages of the proceedings. United States v. Wade (1967), 388 U.S. 218, 224. In Brewer, the United States Supreme Court stated: * * * [A] person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. [Citations omitted.] Id. at 398. In the instant case, appellant provided police with a written statement prior to the initiation of formal judicial proceedings against him. At the time he gave the statement, there was no formal charge against appellant; likewise, his written statement was obtained before any preliminary hearing, indictment, information or arraignment was initiated against appellant. The mere issuance of an arrest warrant and subsequent arrest of appellant did not constitute a critical stage of the proceedings in which the right to counsel under the Sixth Amendment attached. Appellant also claims that his written statement was not voluntarily provided. In Miranda v. Arizona (1966), 384 U.S. 436, the United States Supreme Court established certain procedural safeguards designed to protect the rights of an accused under the Fifth and Fourteenth Amendments to be free from compelled self-incrimination. In order to use statements obtained during custodial interrogation, the state must warn the accused, prior to questioning, of his right to remain silent and to have retained or -10- appointed counsel present during interrogation. Id. at 445-446. Although a defendant must be informed of his rights, the effectuation of these rights may be waived by a defendant if done so voluntarily, knowingly and intelligently. Id. at 445. The record demonstrates that appellant knowingly, voluntarily and intelligently waived his right to remain silent and his right to an attorney prior to providing his statement to law enforcement. Sergeant Cross testified at the suppression hearing that he advised appellant of his rights immediately upon arrest. Detective Gray testified that he also informed appellant of his rights later, at the police station, prior to interviewing appellant. Both times, appellant indicated that he understood his rights. Appellant contends that his statement was involuntary because the law enforcement officers used threats of the electric chair to coerce his statement. The defendant has the burden of ultimate persuasion to prove that his inculpatory statement was compelled by threats, and therefore involuntary. State v. Kassow (1971), 28 Ohio St.2d 141, paragraph three of the syllabus. We note that appellant neither testified at the suppression hearing nor offered any other evidence that his statement was the product of threats by the police. On the other hand, during his suppression hearing testimony, Detective Gray denied that any threats were made by him or anyone else. Moreover, at the bottom of his statement, appellant indicated that nobody made any threats or promises to him to coerce his statement. Therefore, the uncontradicted testimony and evidence offered -11- at the suppression hearing clearly supported the trial court's finding that appellant's statement was voluntarily given. Accordingly, appellant's second assignment of error is overruled IV. In his third assignment of error, appellant challenges a portion of the prosecution's opening statement where the prosecutor referred to the statement given by Valiant Townsend to police. Specifically, the prosecutor stated: * * * The guy mentioned earlier -- who is not here -- Valiant Thompson [sic] was arrested. He was advised of his rights and he volunteered --then volunteered a statement in which he identified the defendant as the shooter in this matter. * * * (Tr. 77.) When called to testify, by the defense, Townsend exercised his right not to testify under the Fifth Amendment. Appellant argues that the prosecution knew or should have known that Townsend would not testify; therefore, appellant argues that the prosecution intentionally prejudiced the jury by alluding to Townsend's statement in opening arguments. Appellant argues that this comment was improper because it violates DR 7-106(C)(1). DR 7-106(C) states: In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. -12- * * * Both the prosecution and the defense are given great latitude in making their opening and closing arguments. State v. Landrum (1990), 53 Ohio St.3d 107, 111. We consider the prosecutor's actions in the context of the entire trial, not in isolation. State v. Keenan (1993), 66 Ohio St.3d 402, 410. We note that the defense also alluded to Townsend's statement during opening arguments. Moreover, after its failed efforts to elicit testimony from Townsend, the defense also attempted to introduce Townsend's statement into evidence. Under these circumstances, we find that the prosecutor's comment did not violate DR 7-106(C)(1). Moreover, appellant failed to object to the disputed comment at trial. This failure waives all but plain error. State v. Smith (1997), 80 Ohio St.3d 89, 107. The test regarding whether such prosecutorial misconduct deprives a defendant of a fair trial is whether the actions "of the prosecutor were improper, and if so, whether they prejudicially affected substantial rights of a defendant."State v. Lott (1990), 51 Ohio St.3d 160, 165. Even if the prosecutor's comments were improper, the verdict will not be reversed if the comments were harmless beyond a reasonable doubt. State v. Zimmerman (1985), 18 Ohio St.3d 43, 45. During trial, the jury was presented with overwhelming evidence of appellant's guilt. This evidence included the testimony of Mr. Quran, one of appellant's victims, who positively identified appellant as the gunman during his testimony. Viewing the prosecutor's comment during his opening statement in the -13- context of the entire trial, we believe that the comment wa sharmless beyond a reasonable doubt.2 Accordingly, appellant's third assignment of error is without merit and is overruled. V. In his fourth assignment of error, appellant asserts that the trial court erred by imposing two three-year sentences for firearm specifications. Appellant maintains that the felonies he was convicted of committing constituted the same act or transaction; therefore, he should have been sentenced for only one firearm specification. R.C. 2929.14(D)(1)(a)(i) states: * * * A court shall not impose more than one additional prison term on an offender under this division for felonies committed as part of the same act or transaction. * * *. The term "transaction" within the meaning of R.C. 2929.71(B)3, the predecessor of R.C. 2929.14, has been defined as "a series of continuous acts bound together by time, space and purpose, and directed toward a single objective." State v. Wills (1994), 69 Ohio St.3d 690, 691, In the instant case, the trial court sentenced appellant to 2 We also note that the trial court instructed the jury that comments made by the attorneys did not constitute evidence. The prosecutor's brief remark concerning Townsend's statement was not so patently prejudicial that it is to be inferred that the jury failed to heed the admonition of the trial court. 3 In his brief, appellant cites former R.C. 2929.71(B). However, appellant committed his offenses after July 1, 1996; therefore, R.C. 2929.14(D)(1)(a)(i) applies to the instant case. -14- two three-year prison terms for two firearm specifications, one under the aggravated murder conviction and one under the attempted murder conviction. However, the underlying felonies were clearly committed by appellant as part of the same transaction; therefore, the trial court, pursuant to R.C. 2929.14(D)(1)(a)(i), should have sentenced appellant to only one three-year prison term for a single firearm specification. Accordingly, appellant's fourth assignment of error is sustained and his sentence is hereby modified. VI. In his fifth assignment of error, appellant argues that the trial court erred by failing to merge his two convictions for the aggravated murder of a single victim. This assignment of error is without merit. Once again, we agree with appellant's basic proposition of law. [W]here a defendant is convicted on two aggravated murder counts involving a single killing, the trial court may sentence on only one count. State v. Hawkins (1993), 66 Ohio St.3d 339, 346. However, this assignment of error has no factual basis. In the sentencing order, filed on July 18, 1997, the trial court clearly stated that: Counts number one and two are merged and the sentences are to be served concurrent. This is also reflected in the journal entry filed the same date, which orders concurrent sentences for the two counts of aggravated murder. Accordingly, appellant's fifth assignment of error is overruled. Appellant's conviction is affirmed. This case is remanded for -15- modification of appellant's sentence consistent with this opinion. This cause is remanded for modification of appellant's sentence consistent with this opinion. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. and JAMES D. SWEENEY, J. CONCUR. LEO M. SPELLACY JUDGE -16- 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 .