COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77459 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : CLARENCE MACK : OPINION : Defendant-Appellant : Date of Announcement of Decision: OCTOBER 26, 2000 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. CR-262888 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RANDI MARIE OSTRY, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: J. DEAN CARRO, ESQ. MICHAEL WALSH, ESQ. University of Akron School of Law Akron, Ohio 44325-2901 -2- JAMES M. PORTER, J.: Defendant-appellant appeals from the trial court's denial without a hearing of his petition for post-conviction relief from his convictions of aggravated murder (R.C. 2903.01(B)) and aggravated robbery (R.C. 2911.01). Defendant claims the trial court erred in denying the petition without a hearing because his petition contained sufficient operative facts to require a hearing for his claims of ineffective assistance of counsel. We find no error and affirm. This case arose out of the murder of Peter Sanelli on January 21, 1991, whom defendant was found to have fatally shot three times in the course of effecting a car jacking. On direct appeal, this Court affirmed his convictions and death sentence on December 2, 1993, State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported, and the Ohio Supreme Court affirmed on August 30, 1995, State v. Mack (1995), 73 Ohio St.3d 502. Defendant's petition for writ of certiorari to the United States Supreme Court was denied on January 22, 1996, Clarence Mack v. State of Ohio (January 22, 1996), U.S. Supreme Court No. 96- 6931. On March 14, 1996, the Ohio Supreme Court issued a stay of execution of sentence until August 2, 1996 in order to allow defendant to file the instant petition for post-conviction relief. On August 2, 1996, defendant filed his petition alleging ineffective assistance of trial counsel. The State filed a motion to dismiss. The trial court denied the petition on September 10, -3- 1996, supported by findings of fact and conclusions of law filed on January 25, 1999. This appeal ensued. The State's case established that defendant and two accomplices car jacked Mr. Sanelli's car as he left work from his business. The State's evidence showed that Sanelli was shot at close range by a gun that was proven to be in possession of defendant. One of the key witnesses was Timothy Willis, who testified for the State to defendant's admission of the robbery and murder. For purposes of this appeal, it is not necessary to recite the complete statement of evidence contained in the Ohio Supreme Court opinion to which reference is made at 73 Ohio St.3d at 502. We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED MR. MACK'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL; SECTION 10, ARTICLE I, OHIO CONSTITUTION; AND R.C. 2953.21 BY DENYING POST-CONVICTION RELIEF TO MR. MACK BECAUSE THE PETITION CONTAINED SUFFICIENT OPERATIVE FACTS AND WAS NOT BARRED BY RES JUDICATA. Defendant argues that the trial court abused its discretion in denying him post-conviction relief based upon the ineffective assistance of counsel. Specifically, he claims that: (1) trial counsel should have obtained an independent ballistics test on defendant's gun when the State's evidence showed that three bullet casings at the crime scene came from his gun; (2) Mrs. Carole Mancino, one of his attorneys at trial, should have been allowed to testify regarding contradictory statements allegedly made to her by Tim Willis, the State's key witness; (3) defense counsel should -4- have properly laid a foundation at trial for the introduction into evidence of allegedly prior inconsistent statements made by Curtis Mack and Tim Willis; and (4) defense counsel should have called four witnesses who purportedly would have called into question Willis' credibility on certain details and one witness who would have allegedly provided him with an alibi. Issues which have been or could have been raised and fully litigated before the judgment of conviction or on direct appeal without resort to evidence dehors the record are barred from consideration in post-conviction proceedings by the doctrine of res judicata. State v. Cole (1982), 2 Ohio St.3d 112; State v. Perry (1967), 10 Ohio St.2d 175. In State v. Cole (1982), 2 Ohio St.3d 12, the Supreme Court held: Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata,is a proper basis for dismissing defendant's petition for postconviction relief. Defendant alleges that this principle does not apply to him since on direct appeal he was represented by one of his trial counsel along with newly-appointed counsel. This Court in State v. Broom (May 7, 1998), Cuyahoga App. No. 72581, unreported addressed a similar situation and found that res judicata did apply. Two attorneys represented petitioner on direct appeal: one attorney was present as trial counsel; the other was appointed by the court for the appeal. Although res judicata is normally inapplicable to ineffective -5- assistance of claims raised by the same counsel who defended at trial, Cole, supra, that rule does not control the disposition of this assignment of error. In State v. Zuern (December 4, 1991), Hamilton App. Nos. C- 900481 and C-910229, unreported, the court addressed an identical situation where new counsel and a defense trial attorney worked together on an appeal and stated: Unless we presume, as Zuern would have us, that new co-counsel entering upon a criminal case at the appellate level would deliberately not exercise his professional judgment or duty to assert the ineffectiveness of his co- counsel at trial if the record demonstrated a basis for such a claim, a presumption we adamantly reject, we perceive no reason why the reference in Cole to new counsel would not embrace new co-counsel as well as new independent counsel. Thus, we conclude that Coleis applicable to the case sub judice, and that the doctrine of res judicata may be invoked to bar assertion of his claims of ineffective assistance of counsel which do not rely on evidence dehors the record. Id at., unreported at 12. Id. at 10-11. Based on this authority, we find the defendant's claim that counsel was ineffective for not laying a proper foundation to introduce inconsistent statements by Willis as made to co-counsel Carole Mancino and defendant's cousin, Curtis Mack, could have been raised on direct appeal as it did not require evidence de hors the record since such evidence was proffered at trial. Since defendant failed to raise this issue it is barred by res judicata. Regarding the defendant's remaining claims, we find the evidence the defendant uses to support his claims of ineffectiveness to be insufficient. When a defendant alleges instances of trial counsel's ineffectiveness occurring dehors the -6- record, he must support his allegations with evidentiary quality documents. State v. Kapper (1983), 5 Ohio St.3d 36; State v. Jackson (1980), 64 Ohio St.2d 107. The documents must contain sufficient facts to demonstrate both the lack of competent counsel and resulting prejudice to the defense. Id. 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 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. at paragraph three of syllabus. The burden is on the defendant to prove ineffective assistance of counsel. Trial counsel is strongly presumed to have rendered adequate assistance. Id. Debatable trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 49. Defendant's assertion that he was denied the effective assistance of counsel when his trial attorneys did not obtain an independent ballistics test on the bullets and gun at issue is not supported by the record. The gun, a nine millimeter handgun that was confiscated from defendant, and a pellet and three nine millimeter shell casings involved in the victim's murder, were tested by Thomas Lucey, a firearms expert and examiner in the Cleveland Police Department Forensic Lab. State v. Mack (Dec. 2, -7- 1993), Cuyahoga App. No. 62366, unreported at 7, 8. ( Mack I ). The defense did not employ an independent examiner. In Mack I, this Court stated: [Det.] Lucy [sic] testified that ballistics tests performed on the semi-jacketed bullet recovered from the victim's inner clothing revealed that the handgun recovered from [defendant] at the time of his arrest fired the bullet. He further testified that the gun found on [defendant] fired the three spent shell casings that were recovered on the street at the murder scene. Lucey indicated that he was unable to analyze the other morgue pellet which was submitted because it lacked an adequate copper jacket. Lucey also testified that the gun confiscated from Reginald Germany fired the spent shell casing that was recovered on the sidewalk at the murder scene and the fragment of the copper jacket recovered from the driver's side floor of the victim's vehicle. Id. at 8-9. Based on the above, the ballistic tests revealed that the gun confiscated from defendant fired the pellet jacket recovered from inside the victim's shirt. The same gun fired three of the four casings found at the murder scene. Defendant offers nothing more than pure conjecture of what an independent ballistics report might show. Since an independent test was never conducted, we have no evidence that defendant was prejudiced by counsel's failure to obtain the test. Furthermore, the decision to obtain, or not to obtain, an independent ballistics test is a matter of trial strategy. See State v. Miller (July 19, 1975), Lucas App. No. L-84-235, unreported at 5. As the Miller court correctly noted, the decision of trial counsel not to pursue ballistics tests *** did -8- not constitute a violation of defendant's Sixth Amendment rights. Id. The decision is aptly within the broad brush strokes of overall trial strategy ***. Id. Defendant also asserts the ineffective assistance of counsel when his trial counsel did not call as witnesses five individuals, i.e.,Mike Carrington, Gerald Kates, William Payne and defendant's mother and uncle. Defendant does not aver that trial counsel failed to find or interview most of these witnesses, but instead contends that they should have been called to testify at trial. This claim is also without merit. Decisions regarding the calling of witnesses are within the purview of defense counsel's trial tactics. State v. Coulter (1992), 75 Ohio App.3d 219,230. The mere failure to subpoena witnesses for trial is not a substantial violation of defense counsel's essential duty absent a showing of prejudice. Id at 230; State v. Hunt (1984), 20 Ohio App.3d 310,312; State v. Mitts (September 28, 2000), Cuyahoga App. No. 76963, unreported. In this case, defendant has not demonstrated prejudice. A review of the affidavits does not reveal that counsel was deficient in choosing not to call them and, had they been called, the outcome of the trial would have been different. In fact, the affidavits indicate that if the witnesses had been called, they would have only added confusion and implausibility to the defense strategy. First, Mike Carrington could very well have seen defendant at 6:30 p.m. the day of the murder driving a Lincoln Continental. Testimony at trial revealed the murder occurred sometime between -9- 5:45 p.m. and 6:10 p.m. Carrington also stated that defendant purchased the gun the day after the murder from Willis. This actually contradicted defendant's own version where he stated he bought the gun a few days prior to the murder, first from an unknown person and then from a man named Dee. Carrington's testimony would have discredited defendant's version. His affidavit states that he met with trial counsel and told them of this information. It is entirely fair to state that it was a matter of trial strategy not to put Carrington on the stand. Second, Gerald Kates' affidavit reveals that the center from which Willis allegedly walked his daughter home the day of the murder was actually closed. The information that the center was closed was available at trial and could have been raised without resort to evidence outside the original record. Hence, this affidavit is barred by the doctrine of res judicata. See Cole, supra. Third, trial counsel interviewed defendant's mother, Bernice Alford, and chose not to call her as well. Her affidavit details that she carved defendant's initials on the gun but the gun introduced at trial did not have the initials on it. She also averred that the police, during a search of defendant's room, planted evidence. Again, the implausibility of this explanation counseled against calling defendant's mother as a matter of trial strategy. Trial counsel was in the best position to determine the veracity of the witnesses who would actually help, not hurt, the defense. -10- Fourth, William Payne's affidavit states that he phoned defendant at about 5:00 p.m. on the day of the murder and then again a short time later. While this may have been true, the murder occurred after 5:00 p.m., but before 6:10 p.m. Again, this would not have helped the defense. Finally, John Mack, defendant's uncle, essentially corroborated Bernice Alford's statement that during jail visits with co-defendant Germany, Germany stated defendant was not involved. This is hearsay, going to the truth of the matter asserted, and would not have been admissible at trial. Assignment of Error I is overruled. II. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED R.C. 2953.21(E) BY DENYING POST- CONVICTION RELIEF TO MR. MACK WITHOUT AN EVIDENTIARY HEARING. Defendant avers he was entitled to an evidentiary hearing because he presented substantive grounds for relief. Specifically, he contends that trial counsel's failure to obtain an independent ballistics test and the affidavits attached to his petition of five witnesses who either were not called or discovered entitled him to a hearing. A trial court may dismiss a petition for post-conviction relief without first holding an evidentiary hearing. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450, 451. The trial court may do so where it determines the petition, supporting affidavits, documentary evidence, files and record do not demonstrate the petitioner set forth sufficient operative facts to establish substantive grounds for relief. State v. Calhoun -11- (1999), 86 Ohio St.3d 279, 283. The Court in Calhoun further held that the attachment of an affidavit to the petition does not automatically require a hearing be conducted. [A] trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements. To hold otherwise would require a hearing for every postconviction relief petition. Because the statute clearly calls for discretion in determining whether to grant a hearing, accepting all supporting affidavits as true is certainly not what the statute intended. Id. at 284. In this case, the trial court discounted the affidavits, found that the decision not to obtain an independent ballistics test was a strategic decision, and held that defendant was not deprived of his right to the effective assistance of counsel. The court further applied the doctrine of res judicata to bar a repeat presentation of those evidentiary issues already litigated on direct appeal. The trial court also found that defendant had not demonstrated prejudice and that, but for counsel's deficient performance, the outcome of the trial would have been one of acquittal. Since Defendant failed to set forth sufficient operative facts that established substantive grounds for relief, the trial court did not err in not conducting a hearing on defendant's petition for post-conviction relief. Assignment of Error II is overruled. Judgment affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. DYKE, A.J., and ROCCO, J., CONCUR. JAMES M. PORTER 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). .